DOJ Reverses Course on Whether Title VII Prohibits Discrimination against Transgendered Individuals

Attorney General Jeff Sessions has rescinded the Obama Administration’s policy recognizing transgendered employees as protected from discrimination by Title VII of the Civil Rights Act of 1964.  In an October 4, 2017 memorandum to U.S. Attorneys, Sessions stated that “Title VII’s sex discrimination prohibition encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”
 
This position charts a different course from that set by a 2014 memorandum issued by then Attorney General Eric Holder.  In that memo, Holder took the position that Title VII’s sex discrimination prohibitions encompassed “sex-based considerations” including gender identity and transgender status.
 
Attorney General Sessions disagreed, noting that the language of Title VII does not specifically identify transgendered individuals as falling under its protections.  He explained that the sole issue “is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation or employer action.  As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress” and will take this position regarding transgender status in pending and future cases.