Department of Justice Declares Transgender People “not exempt” From Workplace Discrimination

By Clare Reilly


The topics of equal rights and gender identity are striking the courtroom with full force.


A baker refused to bake a wedding cake for a gay couple in 2012 due to his religious beliefs against same-sex marriage—and the pressure on the United States Supreme Court escalated since it announced its schedule for the upcoming term. The case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, will be heard by the Supreme Court later in October.


Actions taken by United States Attorney General Jeff Sessions are only escalating pressure. On October 5, Sessions overturned the previous interpretation of the 1964 Civil Rights Act. His office released a memo saying that the transgender population is not protected from workplace discrimination on the basis of sex—reversing previous action by the Obama administration to promote and enforce civil rights for transgender people. It opposes the 2014 order made by then-Attorney General Eric H. Holder Jr. to encompass gender identity, such as transgender people, when translating the term “sex.”



Title VII of the Civil Rights Act of 1964 bans employment discrimination on the basis of sex, race, color, national origin, and religion. Following previous questions about the inclusivity of “sex,” Sessions declared in the memo to all United States attorneys that the term refers to male or female biologically but does not include “discrimination based on gender identity per se, including transgender status.”



He added that the Justice Department “will take this new position in pending and future matters.” The only exceptions are cases in which the lower-court precedent rules against the new memo, but these cases are now subject to reinterpretation on appeal.



This decision further divides the federal government’s position on this issue, as the Equal Employment Opportunity Commission, an independent federal agency that implements the federal anti-discrimination law, interprets Title VII as including gender identity and sexual orientation.



LGBTQ advocates and Democratic lawmakers are alarmed by this determination and are responding with harsh criticism. U.S. Rep. Joseph P. Kennedy III, chair of the Congressional Transgender Equality Task Force, said in a public statement, “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.”  Greg Nevins, a workplace fairness program strategist at the advocacy group Lambda Legal said “It’s pretty plain now that they are taking on the LGBT community, irrespective of legal merit.” He added that the actions taken by the Department of Justice (DOJ) are “bad lawyering.”



The memo only added to the scrutiny Sessions faced when he told a conservative Christian law firm with a previous history against LGBTQ rights in July that new federal guidance is on the way regarding “how to apply federal religious liberties protections.”



Federal courts have continuously disputed this issue, but five circuit courts have ruled that the Civil Rights Act protects transgender people. A court ruling in the 1989 case Price Waterhouse v. Hopkins also established that the ban on workplace discrimination should involve people who do not fulfill gender stereotypes. The contentious factor in this case was that the woman was found insufficiently feminine and therefore not a transgender person.


Ergo, the question of what “sex” means has never officially been resolved by the United States Supreme Court.


The DOJ acknowledged that the Obama administration abandoned the issue at hand and never concluded that the bar to “sex” discrimination incorporates sexual orientation. Accordingly, in an email sent to NBC News, DOJ spokesperson Devin O’Malley said that, “The Department of Justice cannot expand the law beyond what Congress has provided.” He further supported Sessions by reassuring the public that the DOJ is 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.”


This announcement follows controversy around previous strides made by the DOJ. In July 2017, the department argued in a private lawsuit, Zarda v. Altitude Express, involving a skydiver instructor who was fired after exposing his sexual orientation, that “Title VII does not prohibit discrimination because of sexual orientation.” Sessions also lifted the precedence set for transgender students in public schools earlier, as they are no longer allowed to use bathrooms that represent their gender identity. This occurred shortly after President Trump’s announcement that transgender people would no longer be allowed to serve in the military.


The Justice Department will now deny any transgender plaintiffs who argue workplace discrimination included in the 1964 Civil Rights Act. With the upcoming case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the DOJ has established their position as supporting the baker, evidenced through their recent submission to the Supreme Court of an amicus curiae brief (an effort to influence a court’s decision).


Despite this stance, civil right advocates remain hopeful that the Court will answer this question of law in support of the transgendered. Sharon McGowan, Director of Strategy at Lambda Legal, said to NBC News that the memo is “weak and thin in terms of legal analysis,” and added that it “ignores two decades of law that have essentially unanimously concluded that discrimination against transgender people is a form of sex discrimination.” She refers to the memo as a reflection of what the DOJ wishes the law were.


The impact of the memo will be revealed soon, when the court sets the precedence for the future interpretation of Title VII.