Back in July of this year, the U.S. Department of Justice officially revealed its position that nothing would prevent an employer from discriminating against a gay worker before of his sexual orientation. On that very same day, President Donald Trump tweeted that the military should ban transgender people from serving.
Fast forward to yesterday. In a move that surprised everyone, said absolutely no one, the DOJ issued this memo in which it posited that Title VII of the Civil Rights Act of 1964, the federal workplace anti-discrimination law, does not protect transgender workers from discrimination based on their gender identity per se.
According to Sessions, “Title VII expressly prohibits discrimination ‘because of… sex’ and several other protected traits, but it does not refer to gender identity.”
Yep, I think we can agree that the drafters of Title VII weren’t consumed with protections for individuals based on gender identity. Heck, the protections for sex discrimination were meant as a poison pill.
But, I digress. While it’s true that Title VII doesn’t reference “gender identity,” it doesn’t mention a “hostile work environment” either. Yet, the U.S. Supreme Court has told us that’s unlawful under Title VII. The same goes for sex stereotyping. It should come as little surprise then that Sessions’s predecessor, U.S. Attorney General Eric Holder, directed the federal government to include gender identity in the list of protected classes.
Yeah, about that.
In reversing course, current U.S. Attorney General, Jeff Sessions, cited the Holder memo. Sessions also relied upon Judge Diane Sykes’s dissenting opinion in Hively v. Ivy Tech. (The majority of Seventh Circuit judges in Hively concluded earlier this year that Title VII does cover discrimination based on sexual orientation).
Although Sessions noted that “nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity,” it didn’t stop the DOJ from pulling the rug out either.
Fortunately, Title VII protections against sex stereotyping remain. Plus, many states and localities have laws expressly prohibiting discrimination based on LGBT status. And the EEOC continues to take the position that Title VII does prohibit discrimination based on sexual orientation and gender identity.
Well, at least for now it does.