Attorney General Holder announced today that the Department of Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.
DOJ Memo: Attorney General Holder informed all Department of Justice component heads and United States Attorneys in a memo that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination, reversing a previous Department of Justice position. Title VII makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s…sex,” among other protected characteristics.
“This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status,” said Attorney General Holder. “This will help to foster fair and consistent treatment for all claimants. And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”
The Attorney General’s memo is designed to foster consistent treatment of claimants throughout the government and reduce confusion. In addition to applying to the department’s civil obligations in defending federal interests, this memo clarifies the Civil Rights Division’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals. The Department of Justice does not have authority to file suit against private employers.
Weren’t trans people already covered under Title VII?
Source MSNBC: Holder’s move builds off of numerous federal court decisions and a 2012 opinion by the Equal Employment Opportunity Commission stating that gender identity discrimination falls under sex discrimination prohibited by Title VII. The Department of Education has also issued guidance clarifying that Title IX – a law that bars sex discrimination in federally-funded education programs and activities – includes protections for transgender students as well. And in the most recent action taken by the federal government in the name of LGBT equality, President Obama in June signed twin executive orders barring discrimination against federal employees and employees of federal contractors on the basis of sexual orientation or gender identity.
Mara Keisling, executive director of the National Center for Transgender Equality, welcomed Holder’s memo but said that rather than break new ground, it mainly affirms a position the Equal Employment Opportunity Commission has been taking since 2012. Keisling said it is also consistent with how the Education Department has applied Title IX, the federal law that prohibits sex discrimination in education, to discrimination complaints brought by transgender students.
“It’s just another message to employers, whether they are public employers or private employers, that it is illegal in every state in this country to discriminate against transgender people in employment,” Mara said.