Federal Civil Rights Law Doesn't Protect Transgender Workers, Justice Department Says
Federal Civil Rights Law Doesn't Protect Transgender Workers, Justice Department Says
A Justice Department memo, signed by Attorney General Jeff Sessions, says transgender employees aren't protected by Title VII of the Civil Rights Act.
by Julie Moreau / Oct.05.2017 / 6:45 PM ET
The Department of Justice (DOJ) released a memo Wednesday asserting that federal civil rights law does not protect transgender people from discrimination at work. The memo refers specifically to Title VII of the 1964 Civil Rights Act , which prohibits employment discrimination on the basis of sex.
“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se, " the memo, signed by Attorney General Jeff Sessions, states. “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.”
Immediately following the memo's release, the DOJ received harsh criticism from Democrats and LGBTQ advocates.
“It is a dark day in our nation’s history when those tasked with defending our civil rights open the door to government sponsored discrimination,” U.S. Rep. Joseph P. Kennedy III, chair of the Congressional Transgender Equality Task Force, said in a statement. “Barely buried underneath the Attorney General’s empty assurances is a clear message to all Americans that this government will not defend them from hatred. And despite his protestations, decades of court decisions have made clear that sex discrimination laws still protect transgender people."
Joel Kasnetz, a spokesperson for the Democratic National Committee, said Sessions' memo "escalated the Trump administration's war on LGBTQ people."
"By reinterpreting our employment laws to try to stop protecting transgender people from discrimination, Donald Trump, Mike Pence, and Jeff Sessions have revealed their real goal — turn the clock back to a time when life was even more difficult for LGBTQ people, transgender individuals in particular," Kasnetz said in a statement.
Mara Keisling, executive director of the National Center for Transgender Equality, slammed the memo in a statement sent to NBC News.
“According to Sessions, an employer is free to hang a ‘Transgender Need Not Apply’ sign in their window," Keisling said. "Fortunately, he is dead wrong on the law. Neither President Trump nor Jeff Sessions can change the law, but they are determined to sow confusion and put their seal of approval on discrimination.”
Devin M. O’Malley, spokesperson for the Department of Justice, defended the memo in an email sent to NBC News, pinning blame on the Obama administration for “expand[ing] the law” beyond its intended scope.
"The Department of Justice cannot expand the law beyond what Congress has provided. Unfortunately, the last administration abandoned that fundamental principle, which necessitated today's action," O'Malley wrote. "This Department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation."
While there is no federal legislation that prohibits employment discrimination against LGBTQ workers, the Equal Employment Opportunity Commission (EEOC) — an independent federal agency tasked with enforcing federal anti-discrimination law — has taken the position that Title VII covers both sexual orientation and gender identity.
The DOJ's memo, however, puts the department at odds with the EEOC, furthering a split in the federal government’s position on the same issue.
In fact, the EEOC just filed a lawsuit involving a transgender man whose offer of employment was retracted after his prospective employer became aware of his transgender identity. In a press release announcing the suit, the EEOC stated the "alleged conduct violates Title VII of the Civil Rights Act of 1964."
Wednesday's DOJ memo also directly contradicts a 2014 memo issued by former Attorney General Eric Holder, which made explicit the DOJ's position that Title VII does protect trans employees.
"The DOJ is back in the business of trying to urge courts to interpret federal civil rights protection in a way that denies protection to transgender people," Sharon McGowan, director of strategy at Lambda Legal, said.
McGowan described the memo as “weak and thin in terms of legal analysis," adding that it "ignores two decades of law that have essentially unanimously concluded that discrimination against transgender people is a form of sex discrimination."
“The memo reflects what they wish the law were,” McGowan added. “It reads as a raw political document.”
A 'Perfect Storm' Heading for LGBTQ Rights?
Under the administration of President Donald Trump, the Department of Justice has found itself at odds with LGBTQ-rights advocates on several issues.
Just last week, the DOJ intervened in another case regarding anti-LGBTQ discrimination — Zarda v. Altitude Express — to argue Title VII does not protect gay, lesbian and bisexual workers .
And last month, the DOJ submitted an amicus brief to the U.S. Supreme Court backing a Christian baker in Colorado who refused to make a wedding cake for a same-sex couple. The case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , will be heard by the high court in its upcoming term, which just started this week.
In July, U.S. Attorney General Jeff Sessions told a conservative Christian law firm with a long history of fighting against LGBTQ rights that new federal guidance is on the way regarding “ how to apply federal religious liberty protections .”
And in February, the DOJ, along with the U.S. Department of Education, reversed Obama-era guidance on transgender bathroom protections in public schools.
McGowan also connected the Justice Department's memo to the Trump administration’s judicial nominations. Several of his picks have garnered harsh criticism from LGBTQ advocates due to their history of defending anti-LGBTQ policies. Just yesterday, Lambda Legal and more than 60 other LGBTQ rights groups submitted a letter opposing the nomination of Eric Dreiband to lead the DOJ's Civil Rights Division due to his “overwhelmingly anti-civil rights record and his personal involvement in cases seeking to diminish the rights of LGBT people and other vulnerable communities.”
For McGowan, today’s actions by the DOJ “fit the pattern of DOJ inserting itself to claw back the progress of civil rights generally and LGBTQ rights specifically.” The combination of these actions and Trump's judicial nominees could be a "perfect storm," McGowan warned.
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Taking another step backward...
This country of ours and its backward looking officials are its own worst enemies. Apparently, in electing elders we do have an established divide in this country. Ironically, this nation leads the world and yet we are not the most "developed" people in the world. I have concluded John Sessions AND Donald Trump to be truly detestable men. Both me are pushing a stance of, "Clarify that which I break."
Everybody needs to get off their high horses. Look at the when the Civil Rights act went into effect. 1964. Transgenders were NON-EXISTENT in 1964. This is a whole new level of Civil Rights. The act needs updated, yes, but to claim that it was like this from the start is asinine.
Well that's not true.
Lili Ilse Elvenes, better known as Lili Elbe (28 December 1882 – 13 September 1931), was a Danish transgender woman and one of the first identifiable recipients of sex reassignment surgery. Elbe was born Einar Magnus Andreas Wegener and was a successful painter under that name.
And, of curse their was Ed Woods minor masterpiece "Glen or Glenda" that made Christine Jorgensen known to many Americans in the 50's, (tI wouldn't see the film until a midnight drive-in screening in the mid 60's).
A composite image showing Christine Jorgensen as a man before her operation and after.
The point is, I knew about Transgender folk back in the 60's even though I lived in the bible belt deep in the heart of Texas.
Knew they were there and thought nothing of it.
They're part of the human family and deserve equal standing in our communities.
Just saying.
So that's where you stopped reading and had to search for that? You should have kept reading, you missed where I said "The act needs updated".
The CRA should be updated to protect sexual orientation and gender identity but that will never happen with the GOP in charge of either house of Congress.
However SCOTUS has already found in the 1989 Price Waterhouse v Hopkins that gender non-conformity is protected under the CRA, and several circuits now understand that to include sexual orientation and gender identity. So does the EEOC even if Trump's neoconfederate DOJ fails to comprehend the precedents.
If anything the anti-LGBT actions the Trump regime has been taking will convince SCOTUS that they need to act by formally treating both sexual orientation and gender identity with heightened scrutiny.
Then why wasn't it done with the Dems in charge? This, along with some other issues, I really have to call bullshit on. Much of what the Dems / left / liberals are demanding that needs to be done was never brought to the furor that we see now during the last administration when they had control. IMHO, it's more a smear attempt to make this administration look bad but the reality of it is, it makes both sides look bad.
Now there are some things that the CRA may not be able to fix. One that I can think of off the top of my head is transgenders in the military. Because it is listed as a mental problem in the DSM, the military has to go with that and deny them the service. Now, at the same time, transgenders shouldn't expect that, if and when the DSM is changed that they can enter military service and get what they want free of charge or at all. Because the treatments are non-life threatening, they may be told to pound sand. The medical system is already overloaded with existing soldiers and veterans that they can barely keep up due to under-manning (severe cuts during sequestration and excessive force reduction) and don't have the money to purchase the treatments and pay referrals to off installation facilities (again, due to sequestration).
The Dems have been trying to pass bills like ENDA for years, you just haven't been paying attention.
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That's a false statement about the DSM. Moreover the DOD and all the top military leadership supports service by transgender folks, as does the study commissioned by the DOD. The problem is Trump & Pence and the bigoted bible-babblers to which they pander.
Also note that the courts won't permit Trump to proceed with his ban for a variety of reasons, and the DOD knows it.
You wrote that to say what? That Democrats are BS'ers about transgendered rights and issues? What role, and there is definitely a role, did republicans (and 24/7 conservative news-mags/talk radio/internet) play in shutting down any forward movement on issues liberals wanted to push forward during their time in leadership? Indeed, similar actions are occurring now as republican lawmakers are "stopped up" by the 'furor' of democrats!
President Barack Obama was battered by conservative talk radio. Moreover, Barack made house-hold names out of little known borderline conservative writers, FOX news anchors, and the NRA spokesman-in-Chief: Wayne LaPierre bar-none. Even our current president mercilessly badgered Barack Obama with that "megaphone" mouth of his. Ironically, Trump's lips would make a great branding image
, because when he really gets going with that set of lips careers are ruined to the ng degree! Exception: Barack H. Obama outlasted the lips of Trump!
So the question is why did President Donald, "I 'heart' the LGBTQ community!" swerve right on the way to ending his first year as president. He can't dodge what he is doing and you can not steer us away from focusing attention on his betrayals.
Donald Trump put the LGBTQ community in his little red wagon right along beside conservative voters and damn right the LGBTQ community is going to grab him by the lips to stay put there!
It's not a false statement. Look up the DSM (5) and the regulations covering enlistment. The President really has no say in it (contrary to what many believe). A study doesn't set DoD policy or regulation.
No one should be surprised that Trump has tried harder to harm LGBT folks than any President in US history. It should have been obvious to anyone paying attention based on his statements against marriage equality and his appointment of Pence and so many other dumb bigots in his administration.
Yes it was a false statement. The DSM does not refer to being transgender as a "mental problem" as you claimed but it does give diagnostic standards for gender dysphoria. Only a minority of trans folks ever experience that and it's not even a condition exclusive to them.
As far as the DOD goes the relevant issue is that the ban on enlistment and open service was lifted over a year ago and trans soldiers were encouraged by the DOD to come out. For Trump to now reverse that policy without any legitimate basis whatsoever is a violation of the legal principle of "reliance". That's the same problem which Trump's anti-DACA policy faces.
As a former life-long fan of the WWE in all its stages of birth, growth, and development -- like Trump, I know Donald 'sharpened his teeth' at Vince McMahon's training camp of the 'Swerve'!
WWE Chairman Vince McMahon iterates, "The Dirtiest Player In the Game," ever week somewhere on this planet!
I'm glad you at least have a good attitude about it. I can't really imagine what it's like to be gay or trans or female or black or Latino or Muslim or any of the numerous other groups our Fuhrer has tried to harm. Just know that the courts and the vast majority of the public have your back.
In the long run what Trump and Sessions are doing won't matter much since the legal and societal trends are overwhelmingly against their bigotry. In the short run it actually might backfire in the courts since it's proof of unconstitutional animus.
Except our SCOTUS is about to trend towards this administration and one of its recently deceased member's orginalism perspective. You can read it and discern it in Chief Justice Robert's opinions. CJ Roberts is intending to bring honor to the court, but if he focuses all of his 'gifts' on scrutiny of the words from 18th century thinkers alone: He and his court will doom progress. The Honorable Chief Justice wants to yield back his power and authority to set forward-looking precedents to the Congress. But, Congress is in the thralls of conscience-less men and women who will not act in support of the common good while conservatives hold influence and power.
I think I have more faith in the courts and SCOTUS than you do. They've never reversed civil rights progress despite ideological swings in the court, and they generally respect stare decisis. As long as Kennedy is still on the court to give a 5-4 majority we can expect more progress on LGBT rights. However he's much less sympathetic on women's health and voting rights so I don't think there will be any progress there except for a partial fix on gerrymandering.
E.A Would it be preferable that I make point here, or not?
This fall, I certainly will be paying attention (reading) to the Supreme Court opinions.
Jeremy! Then the right course of action is to apply a fix after laying the markers for said action to take place. Otherwise, all that has been achieved is a negative: you leave citizens exposed to the wishes of forces beyond anyone's control including the federal government.
Now then, actions such as these make perfect sense to the unaffected who sit cozily nested in their 'gilded' rights and privileges without any empathy for suffering people who have done nothing wrong to anybody.
It is clear that Sessions and Trump have no interest in the welfare of anyone not like themselves. The fact is these people are here in this country and unless the system plans to purge them like trash, then it belies the truth we tell ourselves everyday to try and throw obstacles in their path with each new change of authority!
That's exactly what should happen. But right now, people are just content with complaining and not doing the work needed to apply a fix (or amendment).
Jeremy, this is a republican majority in both houses that can not find it in its collective heart to pity the children of Sandy Hook gun violence and stand with the recent dead and possibly dying Las Vegas victims of automatic gunfire. How can I, we, have any hope they will stand up for fixing civil rights rulings on behalf of citizens on the margins? It is a presidential/justice sham-play. Moreover, it is transparent to everybody when conservatives are actively campaigning against their fellow citizens. As a liberal, I would never ever stand for short-shifting conservatives, because I am not that scandalous! Why do conservatives "f" around in the state of affairs of people who simply want a fair shake out of life? Please explain it to me clearly.
What are you talking about? The discussion is about getting transgenders rights under the 1964 Civil Rights act and you are going on and on about guns?
I think you may have your conversations mixed up.
My discussions are not mixed up. If you do not understand the game as it is being played do not mix me up with your confusion. Congress, namely republicans, are not about to lend their names or voting records to support anything a a group of transgendered "outcasts" want to see happen, unless millions of people I presume like yourself write, phone, or hand-deliver and signal your intentions to see such a bill become law granting transgendered people rights and privileges.
Here is the point-blank question to you, Jeremy.
Question: Do you categorically support a bill becoming law which grants transgendered citizens civil rights and privileges equivalent to heterosexual rights and privileges in this country?
Um, yes. What you quoted is not me. You have them mixed up.
Yes. Only an idiot would oppose it. But then again, there are plenty of them running around this country.
Then I thank you for your support of transgendered people. I do not have confidence that these people will find enough support in this conservative majority Congress to pass any bill into law. Your support is highly favored, but it is not enough alone. The transgendered community will languish, because Sessions and Trump do not have good intentions. If they did have such good intentions they would signal "wildly."
Being mentally unstable is not a civil right. Kudos to Attorney General Sessions for this reasoned decision
WRONG. Transgender people are not "mentally unstable," and being transgender IS a civil right.
It is possible you meant your comment as an ass-backwards joke, but this is no laughing matter. Real citizens who hurt because of policies against them and not because of anything they have done to anybody else, who seek to improve their own positions in this game of life will be negatively affected by heterosexually culturally secured men. It is time these suffering people say, no more of this waste of time, talent, and personal treasure!
I wasn't joking. "Transgender" is just PC for someone who is either mentally unstable or demon possessed.
Sounds like you'll have to get the high priest at your favorite cult to exorcise your demons.
Says you from the safe confines and strictures of your cultural norms. Tell me this: What is it like being a "mean person"?
I'm not mean at all. I'm known as a laid back person who laughs a lot. My statement had nothing to do with meanness. It was a reflection of the Word of God who doesn't want anyone trapped in sin, confusion or demonic possession
Oh I see now. You say it is the Word of God that gives you license to be mean? Tell me, did the Word send you to give us a lesson in lacking empathy ? Child of God elaborate please.
careful with that line of thought, it could easily backfire on you or have "unintended consequences" if you explore it further and legislate it into law
I made no mention nor do intend legislation. It is the left (and some Republicans) who want legislation for everything
your original statement implies legislation as well. civil rights are legal, correct ?
Sure. Can you show me where there's ever been a determination by Congress or SCOTUS that mental instability is a civil right
Sounds like you don't know what the ADA or the MHPAEA are.
LOL.
oh those pesky facts are getting in the way again - please stop posting those facts Skrekk (oops... LOL)
I'm not sure how you think that relates to the topic, but mental health issues are protected under a variety of state and federal laws including HIPAA, the ACA and the ADA.
Common sense. It's idiotic to pretend that transgenderism is covered by the 1964 law.
If Democrats wanted to protect transgenders, they should have passed a law to do so.
Suppose for a moment, transgender people were the majority and required heterosexuals to legally define your rights and privileges against wave after wave of resentments since time immemorial. Heterosexuals likely would be a puddle on the Congressional House floor in Washington, or going about inquiring why the transgendered majority can't cope with empathy for another sub-set of decent law-abiding citizens.
Unreadable. Don't 'do' Stand-up comedy. You will fail.
A hypothetical farce that is impossible
Now this is a rip-roaring comedy statement! HA!
The operative word there is: E-M-P-A-T-H-Y. Can you try a little of that? You can ignore the rest.
I can empathize with someone who knows they are living a wrong life and doesn't know how to break free. I don't empathize with people who choose to be rebel against God
21 “Not everyone who says to Me, ‘Lord, Lord,’ shall enter the kingdom of heaven, but he who does the will of My Father in heaven. 22 Many will say to Me in that day, ‘Lord, Lord, have we not prophesied in Your name, cast out demons in Your name, and done many wonders in Your name?’ 23 And then I will declare to them, ‘I never knew you; depart from Me, you who practice lawlessness!’ Matthew 7:21-23
And He went through the cities and villages, teaching, and journeying toward Jerusalem. Then one said to Him, “Lord, are there few who are saved?”
And He said to them, “Strive to enter through the narrow gate, for many, I say to you, will seek to enter and will not be able. When once the Master of the house has risen up and shut the door, and you begin to stand outside and knock at the door, saying, ‘Lord, Lord, open for us,’ and He will answer and say to you, ‘I do not know you, where you are from,’ then you will begin to say, ‘We ate and drank in Your presence, and You taught in our streets.’ But He will say, ‘I tell you I do not know you, where you are from. Depart from Me, all you workers of iniquity.’ Luke 13:22-27
Romans 12: 18 If it is possible, as far as it depends on you, live at peace with everyone.
2 Timothy 2: 24 And the Lord’s servant must not be quarrelsome but must be kind to everyone, able to teach, not resentful.
So Livefreeordie, which is it you assume: A servant's role or the Lord's role?
SCOTUS already disagrees with you. See Price Waterhouse v Hopkins.
Hopkins did not address whether "sex" can include either sexual orientation or gender identity.
The first hint that it doesn't should be that this is still an issue.
Hopkins directly addressed presumptive gender non-conformity which is why the federal courts have been consistently citing that case and related precedents to protect transgender folks and gender expression non-conformity. More recently the federal courts have applied it to treat anti-gay discrimination as being discrimination against gender-role non-conformity.
More generally because "sex" wasn't defined or scoped in any way by the CRA, the courts have been using the "but for" test to observe that sex really is the issue when an employer discriminates against a current or potential employee due to the relative sex of their spouse. The same "but for" test was involved when employers discriminated against persons because they were in a mixed-race marriage.
So I'd suggest you learn about the rulings related to Price Waterhouse v Hopkins to learn why the EEOC and the courts are ruling the way they are. Here's a good place to start: