With the release of a Justice Department memo on October 5 titled “Revised Treatment of Transgender Employment Discrimination Claims,” signed by Attorney General Jeff Sessions, the Trump administration has cast aside any uncertainty [August 3, 2017 Article] about its position of federal protections for transgender workers. Referring specifically to Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of sex, the memo asserts that federal civil rights law does not protect transgender people from discrimination at work. The memo was sent to all U.S. attorneys and the heads of all federal agencies.
The Justice Department’s Memo
Sessions wrote in the memo that “[A]lthough federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se. Title VII expressly prohibits discrimination ‘because of sex…’ and several other protected traits, but it does not refer to gender identity. ‘Sex’ is ordinarily defined to mean biologically male or female.” The Sessions memo further states that “Congress has confirmed this ordinary meaning by expressly prohibiting, in several other statutes, ‘gender identity’ discrimination, which Congress lists in addition to, rather than within, prohibitions on discrimination based on ‘sex’ or ‘gender’”. Sessions additionally asserts that this position “is a conclusion of law, not policy” and will be the position “in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).”
The Trump Administration’s stance is a reversal of the Obama Administration’s position that gender identity is protected as part of Title VII’s prohibition against sex discrimination.
Transgender Employees May Still Be Protected Under State Law
Despite the Justice Department’s clear directive, employers must still consider the following state law and agency protections that remain in effect:
- Twenty states, FN1 including Colorado, as well as the District of Columbia, Guam, and Puerto Rico, have statutes that protect against both sexual orientation and gender identity discrimination in employment in the public and private sector. In addition, New Hampshire and Wisconsin have statutes that protect sexual orientation discrimination in the public and private sector, nine U.S. states FN2 have an executive order, administrative order, or personnel regulation prohibiting discrimination only in public employment based on either sexual orientation or gender identity, and four U.S. states FN3 have executive orders prohibiting discrimination in public employment based on sexual orientation. Although the remaining sixteen states do not offer any type of discrimination protections for the LGBT community, some cities and localities have passed their own ordinances within these states.
- The Department of Justice’s position does not necessarily affect the position taken by the Equal Employment Opportunity Commission (EEOC), which has taken a different view looking to protect gender identity and transgender status.
- The Occupational Safety and Health Administration (OSHA) has taken a stance similar to the EEOC’s. In 2015, OSHA released guidance on best practices regarding restroom access for transgender workers.
Employers should check with their employment counsel to determine what specific anti-discrimination protections apply to their employees. As always, employers are cautioned to make adverse employment decisions such as discipline or termination only after confirming the decisions are motivated by legitimate and non-discriminatory business reasons. Consistent and thorough documentation of employee performance and discipline go a long way toward proving employment decisions are legitimate and lawful.
FN1 Colorado, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington.
FN2 Indiana, Kentucky, Michigan, Montana, New Hampshire, North Carolina, Pennsylvania and Virginia.
FN3 Alaska, Arizona, Missouri, and Ohio.