Department of Justice Switches Sides: Title VII Now Prohibits Transgender Discrimination

On December 18, 2014, Attorney General Eric Holder, in an unanticipated move, revised the Department of Justice’s (“DOJ”) interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), which makes it unlawful for employers to “discriminate against any individual…because of…sex….” Specifically, in a memo to all United States Attorneys and DOJ Department Component Heads, Attorney General Holder announced that Title VII’s “because of sex” provision now prohibits discrimination based on an employee’s transgender status.

“After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII's prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status” Holder wrote. The announcement signifies a pivotal reversal of the DOJ’s previous position under the Bush administration, which in 2006 stated that Title VII did not prohibit discrimination based on transgender status.

However, while there’s no federal law explicitly protecting transgender people from discrimination, Holder’s memo is just one of many steps by the current administration to expand workplace protections for transgender employees. For example, in 2012, the EEOC, the federal agency charged with enforcing federal discrimination laws, specifically acknowledged that transgender discrimination is a form of sex discrimination under Title VII. SeeMacy v. Holder, Appeal No. 0120120821 (Apr. 20, 2012). In July 2014, President Obama signed an executive order that precludes federal contractors from discriminating against transgender employees. In August 2014, the U.S. Department of Labor also issued a directive to “clarify that existing agency guidance on discrimination on the basis of sex . . . includes discrimination on the basis of gender identity and transgender status.” “It follows that, as a matter of plain meaning, Title VII's prohibition against discrimination "because of ... sex" encompasses discrimination founded on sex-based considerations, including discrimination based on an employee transitioning to, or identifying as different-sex altogether,” Holder wrote in the memo.

In reality, Holder’s announcement effectively prohibits the DOJ from making arguments in court that Title VII does not protect transgender people. Moreover, in reversing the DOJ’s previous position, Holder’s hope is that “this clarification of the Department's position will foster consistent treatment of claimants throughout the government, in furtherance of this Department's commitment to fair and impartial justice for all Americans.”

Yet in making the announcement, Holder acknowledged that the law surrounding transgender discrimination is anything but settled in America today. While the federal government has recently led the movement in expanding transgender workplace rights, more than half of states lack workplace protections for transgender employees. Courts have also reached mixed results in determining whether gender identity considered alone, including transgender status, rises to the level of discrimination based on sex in violation of Title VII. Compare Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), with Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007).” According to Holder, “this memorandum is not intended to otherwise prescribe the course of litigation or defenses that should be raised in any particular employment discrimination case. The application of Title VII to any given case will necessarily turn on the specific facts at hand.”

The memo and the federal government’s recent expansion of transgender rights will likely have widespread consequences for transgender people in the workplace. However, employers must also stay up to date with ever-changing state laws as well in order to ensure full compliance with all relevant discrimination and harassment laws. Employers must review, and if necessary, revise their policies in light of the federal government’s heightened expectations and increased protections recently afforded to transgender employees.

If you or your institution has any questions or concerns regarding employment-related issues, please email James G. Ryan at jryan@cullenanddykman.com or call him at 516-357-3750.