By Zack Ford, ThinkProgress
Discrimination based on gender identity will no longer be considered discrimination based on sex.
The Department of Justice will no longer argue that workplace protections on the basis of sex protect transgender people from discrimination. That’s according to a new memo from Attorney General Jeff Sessions obtained by BuzzFeed Thursday.
The new policy reverses a policy put in place in 2014 by then-Attorney General Eric Holder. The fundamental question is whether denying someone employment based on their gender identity (i.e. being transgender) constitutes discrimination on the basis of that person’s “sex,” as protected under Title VII of the Civil Rights Act. Holder held that trans people fall under that category, but Sessions has now reversed that and declared they no longer enjoy such protections.
“Title VII does not prohibit discrimination based on gender identity per se,” Sessions writes, according to BuzzFeed. Under his view, the law only covers discrimination between “men and women.”
However, a 2008 case proves Sessions’ reasoning wrong: the judge in that case found that a trans woman had been discriminated against on the basis of sex because the Library of Congress denied her a job after learning she was transitioning. District Judge James Robertson explained that if an employer treated Christians and Jews fairly but discriminated against “converts” between the two religions, “that would be a clear case of discrimination ‘because of religion,’” so discrimination against a person for transitioning their sex should not be treated any differently.
Nevertheless, Sessions’ new policy now impacts what the DOJ will argue in future cases. This reflects the anti-LGBTQ positions the Trump administration has already taken in various other cases, including one in which a man claimed he was fired for being gay and another in which a Colorado baker refused service to a same-sex couple for religious reasons. It also adds to the litany of actions the Trump administration has taken specifically against transgender people, including rescinding protections for transgender students, banning transgender people from the military, and working to roll back health care protections for trans people.
Not recognizing a person’s gender identity as their lived sex is an inherent rejection of the legitimacy of that identity. Sessions nevertheless insists in the memo that he’s not anti-trans:
The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections.
The DOJ decision stands in stark contrast to the Equal Employment Opportunity Commission (EEOC), an independent commission that has held that transgender employees are protected under Title VII since 2012. In a 2015 case, for example, the EEOC ruled in favor of a trans woman who claimed the Army had discriminated against her as a civilian employee by not letting her use the women’s restroom. The DOJ and EEOC also recently had an interesting stand-off in court when they took opposing positions on a case of anti-gay discrimination.
The Sessions memo could greatly undermine transgender people’s ability to fight discrimination in the workplace. Under Sessions’ leadership, the DOJ has shown willingness to chime in on cases in favor of anti-LGBTQ discrimination, so even if the EEOC is advocating for a trans person, the DOJ would still argue against them. There are still 30 states that offer no employment explicit protections on the basis of gender identity, so if trans victims of discrimination in those states can’t make their case based on protections because of “sex” under federal law, they may have no recourse whatsoever.
The recent U.S. Trans Survey found that 27 percent of trans people who’d applied for a job in the past year had been fired, denied a promotion, or not been hired due to anti-trans discrimination. The number is actually likely higher, as studies have shown that trans people may not even realize they’re being discriminated against in employment. The survey also found that trans people are three times as likely to be unemployed than the rest of the U.S. population.