Attorney General Jeff Sessions has reversed a previous memo from President Barack Obama’s administration that interpreted the Civil Rights Act to protect transgender workers, potentially opening people up to discrimination in the workplace due to their gender identity.
Sessions laid out the decision in a memo dated Wednesday, obtained by Dominic Holden at BuzzFeed. According to Sessions’s memo, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”
The Justice Department now expects its army of attorneys and other federal agency heads to follow its interpretation, removing potentially powerful allies in court cases about this issue.
At heart of the memo is a question about the reach of the Civil Rights Act of 1964, particularly Title VII.
The law bans sex discrimination in the workplace. Civil rights advocates have argued that this includes transgender people, because discrimination against someone based on their gender identity is fundamentally rooted in sex-based expectations. So if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — a belief built on an idea of what a person of a certain sex assigned at birth should be like.
The Obama administration embraced this view of federal law. So have the Equal Employment Opportunity Commission, the federal agency charged with taking up workplace discrimination complaints, and several federal courts. This was big, since there is no federal law explicitly prohibiting workplace discrimination based on gender identity.
But the issue has yet to be taken up by the Supreme Court. So there’s still room for legal interpretation — and President Donald Trump’s Justice Department has taken the anti-LGBTQ side.
Most states don't explicitly ban anti-LGBTQ discrimination
Under most states’ laws and federal law, trans people aren’t explicitly protected from discrimination in the workplace, housing, public accommodations, and schools. This means that a person can be fired from a job, evicted from a home, kicked out of a business, or denied the correct bathroom facility just because an employer, landlord, business owner, or school principal doesn’t approve of the person’s gender identity.
LGBTQ advocates argue, however, that federal civil rights law should already shield trans people from discrimination, based on their broader interpretation of the legal protections provided by a ban on sex discrimination.
This isn’t just a wild interpretation by LGBTQ advocates; there’s legal precedent for it. Joshua Block, an American Civil Liberties Union attorney, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.
“Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “That’s not how laws work. This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”
Sessions, however, does not share this view. In a statement, the Justice Department told BuzzFeed, “The Department of Justice cannot expand the law beyond what Congress has provided. Unfortunately, the last administration abandoned that fundamental principle, which necessitated today's action. This Department remains 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.” (The memo in question, however, is about gender identity, not sexual orientation.)
This was in some ways expected. The Justice Department had already filed a friend-of-the-court brief arguing against an LGBTQ-inclusive interpretation of Title VII. And more broadly, this is just the latest example of the Trump administration letting down LGBTQ people.
Trump has failed LGBTQ people
On the campaign trail, Trump said he would be different — the first Republican president to embrace LGBTQ people. He said the key acronym (“L, G, B, T … Q”) at the 2016 Republican convention. He held up a Pride flag at a campaign event. He initially defended the right of Caitlyn Jenner, a transgender woman, to use the bathroom that aligns with her gender identity. He tweeted, “Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs.”
Yet while he decided to maintain workplace protections against discrimination based on sexual orientation and gender identity for federal employees and contractors, the rest of his personnel and policy actions have signaled an anti-LGBTQ approach.
For one, the administration is largely made up of politicians who have been staunchly anti-LGBTQ for their whole public careers, like Vice President Mike Pence and Sessions. Both men have long histories in Congress of opposing civil rights measures for LGBTQ people, including workplace protections and hate crime laws — yet they have major roles in shaping the administration’s agenda.
Earlier this year, the Trump administration also rescinded transgender protections for kids in federally funded schools. That reversed a guidance from the Obama administration that asked publicly funded K-12 schools to respect and protect trans students’ rights, including their ability to use the bathroom and locker room that align with their gender identity.
And later on, Trump said he would reinstate a ban on transgender military service. He tweeted that he would ban trans military service because “[o]ur military must be focused on decisive and overwhelming … victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.” There is no basis for Trump’s claim; the research, based largely on the experience of countries like Israel and Canada that allow trans military service, shows that allowing trans people to serve openly has little to no effect on military readiness or costs.
Trump also seems ready to go even further. He has said, for example, that he would support the First Amendment Defense Act, which would allow discrimination against LGBTQ people on a religious basis. And there have long been rumors — although they have yet to be substantiated — that Trump will sign a “religious freedom” order that will allow anti-LGBTQ discrimination.
Altogether, this paints a very different picture of Trump than we saw on the campaign trail. And more than just showing Trump’s dishonesty, the shift threatens the rights of millions of LGBTQ Americans — from those just trying to keep their jobs to those who are willing to sacrifice their lives in service of their country.