KMK Law Management Rights Blog

In a memo issued last Wednesday, October 4, 2017, Attorney General Jeff Sessions announced that the Department of Justice will no longer take the position that Title VII of the Civil Rights Act of 1964 encompasses discrimination based on gender identity per se, including transgender status.  This reverses the position of the DOJ that was announced by then-Attorney General Eric Holder in 2014 under the Obama Administration. 

On December 15, 2014, General Holder announced this interpretation with a memo of his own, noting that the federal government’s view on this issue had evolved over time:

• In 2011, the Office of Personnel Management first issued guidance on the federal government’s workplace nondiscrimination policy that included discrimination based on gender identity;
• In 2012, the Equal Employment Opportunity Commission ruled that discrimination based on gender identity is sex-based discrimination; and
• In 2014, President Obama issued an Executive Order prohibiting discrimination based on gender identity for purpose of federal employment and government contract.

Considering this evolvement, General Holder looked back to the Supreme Court’s decision in Price Waterhouse v. Hopkins, where the Court found that a Title VII plaintiff needs to prove just “that the employer relied upon sex-based considerations in coming to its decision.”  General Holder concluded “[i]t follows that, as a matter of plain meaning, Title VII’s prohibition against discrimination ‘because of…sex’ encompasses discrimination founded on sex-based consideration, including discrimination based on an employee’s transition to, or identifying as, a different sex altogether.”   

In reversing this interpretation, General Sessions noted that this decision “is a conclusion of law, not policy.” General Sessions contrasted Title VII, which prohibits discrimination “because of…sex” but does not refer to gender identity, with other statutes where Congress did specifically list gender identity as a protected class (such as federal hate crime legislation and the Violence Against Women Act).  This would show that Congress has the ability to specifically include gender identity protections when it wants to, and so these protections can not be included within a broader interpretation of sex-based protections.  General Sessions concluded that the interpretation put forth by General Holder went beyond the scope of court precedent, and therefore determined that Title VII’s prohibition on sex discrimination encompasses discrimination between men and women, but does not encompass discrimination based on gender identity.  General Sessions did note, however, the that DOJ “must and will continue to affirm the dignity of all people, including transgender individuals” and that this new interpretation “should not be construed to condone mistreatment on the basis of gender identity.”

Whichever is the correct interpretation of Title VII will ultimately be decided by the Supreme Court, and this answer could come sooner rather than later. As previously highlighted by this blog the Seventh Circuit just this year found that Title VII’s prohibition on sex discrimination encompassed discrimination based on sexual orientation, creating a split among the Circuit Courts.  If this issue makes it to the Supreme Court, which it could as early as this current term, we would get a first look at how encompassing the prohibition on sex discrimination really is.