AG Sessions Says Title VII Does Not Protect Against Gender Identity Discrimination
Last week, Attorney General Jeff Sessions issued a memo that affects the way the Department of Justice (“DOJ”) applies Title VII of the Civil Rights Act of 1964 (“Title VII”) to claims of discrimination based on the gender someone identifies with. In particular, AG Sessions says that the law would not apply to transgender individuals. AG Sessions based his conclusion on the belief that the Obama Administration and the DOJ improperly enforced Title VII beyond its scope because Congress wrote Title VII to only apply to people who were discriminated on the basis of “sex”, which he defines as being biologically male or female.
The odd part about the memo, is that it also states that it does not attempt to ask Congress to act to bridge the gap between what Title VII protects now in its language, and how Title VII is actually enforced. Interestingly enough, the Equal Employment Opportunities Commissions (“EEOC”) consistently has held the belief that transgender individuals are protected by Title VII, and thus far has not indicated any change in its stance. This creates yet another difference of enforcement policies between the EEOC and the DOJ, and can lead to confusion for numerous employees who are no longer sure if they should speak up about the discrimination they face in the workplace.
If there is a silver lining, it is that AG Sessions states that the memo does not affect other laws enacted by Congress that have the purpose of protecting transgender individuals. Of course, state laws regarding transgender individuals will still be enforced as well, but since a lot of state and federal laws protecting transgender individuals are largely based on Title VII, it may be only a matter of time until they face more scrutiny too.