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Federal Civil Rights Law Doesn't Protect Transgender Workers, Justice Department Says

A Justice Department memo, signed by Attorney General Jeff Sessions, says transgender employees aren't protected by Title VII of the Civil Rights Act.
Image: Jeff Sessions
In this frame grab, AG Jeff Sessions speaks about sanctuary cities on September 19, 2017 in Oregon.NBC News

The Department of Justice (DOJ) released a memo Wednesday asserting that federal civil rights law does not protect transgender people from discrimination at work. The memo refers specifically to Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of sex.

“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se," the memo, signed by Attorney General Jeff Sessions, states. “Title VII expressly prohibits discrimination ‘because of sex…’ and several other protected traits, but it does not refer to gender identity. ‘Sex’ is ordinarily defined to mean biologically male or female.”

Immediately following the memo's release, the DOJ received harsh criticism from Democrats and LGBTQ advocates.

“It is a dark day in our nation’s history when those tasked with defending our civil rights open the door to government sponsored discrimination,” U.S. Rep. Joseph P. Kennedy III, chair of the Congressional Transgender Equality Task Force, said in a statement. “Barely buried underneath the Attorney General’s empty assurances is a clear message to all Americans that this government will not defend them from hatred. And despite his protestations, decades of court decisions have made clear that sex discrimination laws still protect transgender people."

Joel Kasnetz, a spokesperson for the Democratic National Committee, said Sessions' memo "escalated the Trump administration's war on LGBTQ people."

"By reinterpreting our employment laws to try to stop protecting transgender people from discrimination, Donald Trump, Mike Pence, and Jeff Sessions have revealed their real goal — turn the clock back to a time when life was even more difficult for LGBTQ people, transgender individuals in particular," Kasnetz said in a statement.

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Mara Keisling, executive director of the National Center for Transgender Equality, slammed the memo in a statement sent to NBC News.

“According to Sessions, an employer is free to hang a ‘Transgender Need Not Apply’ sign in their window," Keisling said. "Fortunately, he is dead wrong on the law. Neither President Trump nor Jeff Sessions can change the law, but they are determined to sow confusion and put their seal of approval on discrimination.”

Devin M. O’Malley, spokesperson for the Department of Justice, defended the memo in an email sent to NBC News, pinning blame on the Obama administration for “expand[ing] the law” beyond its intended scope.

"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," O'Malley wrote. "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."

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While there is no federal legislation that prohibits employment discrimination against LGBTQ workers, the Equal Employment Opportunity Commission (EEOC) — an independent federal agency tasked with enforcing federal anti-discrimination law — has taken the position that Title VII covers both sexual orientation and gender identity.

The DOJ's memo, however, puts the department at odds with the EEOC, furthering a split in the federal government’s position on the same issue.

In fact, the EEOC just filed a lawsuit involving a transgender man whose offer of employment was retracted after his prospective employer became aware of his transgender identity. In a press release announcing the suit, the EEOC stated the "alleged conduct violates Title VII of the Civil Rights Act of 1964."

Wednesday's DOJ memo also directly contradicts a 2014 memo issued by former Attorney General Eric Holder, which made explicit the DOJ's position that Title VII does protect trans employees.

"The DOJ is back in the business of trying to urge courts to interpret federal civil rights protection in a way that denies protection to transgender people," Sharon McGowan, director of strategy at Lambda Legal, said.

McGowan described the memo as “weak and thin in terms of legal analysis," adding that it "ignores two decades of law that have essentially unanimously concluded that discrimination against transgender people is a form of sex discrimination."

“The memo reflects what they wish the law were,” McGowan added. “It reads as a raw political document.”

A 'Perfect Storm' Heading for LGBTQ Rights?

Under the administration of President Donald Trump, the Department of Justice has found itself at odds with LGBTQ-rights advocates on several issues.

Just last week, the DOJ intervened in another case regarding anti-LGBTQ discrimination — Zarda v. Altitude Express — to argue Title VII does not protect gay, lesbian and bisexual workers.

And last month, the DOJ submitted an amicus brief to the U.S. Supreme Court backing a Christian baker in Colorado who refused to make a wedding cake for a same-sex couple. The case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, will be heard by the high court in its upcoming term, which just started this week.

In July, U.S. Attorney General Jeff Sessions told a conservative Christian law firm with a long history of fighting against LGBTQ rights that new federal guidance is on the way regarding “how to apply federal religious liberty protections.”

And in February, the DOJ, along with the U.S. Department of Education, reversed Obama-era guidance on transgender bathroom protections in public schools.

McGowan also connected the Justice Department's memo to the Trump administration’s judicial nominations. Several of his picks have garnered harsh criticism from LGBTQ advocates due to their history of defending anti-LGBTQ policies. Just yesterday, Lambda Legal and more than 60 other LGBTQ rights groups submitted a letter opposing the nomination of Eric Dreiband to lead the DOJ's Civil Rights Division due to his “overwhelmingly anti-civil rights record and his personal involvement in cases seeking to diminish the rights of LGBT people and other vulnerable communities.”

For McGowan, today’s actions by the DOJ “fit the pattern of DOJ inserting itself to claw back the progress of civil rights generally and LGBTQ rights specifically.” The combination of these actions and Trump's judicial nominees could be a "perfect storm," McGowan warned.

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