The Department of Justice (DOJ) will begin treating allegations of discrimination against transgender people as sex discrimination under Title VII of the Civil Rights Act.
Attorney General Eric Holder issued a Dec. 18 memo informing DOJ staff and U.S. Attorneys that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination. That reverses a previous Department of Justice position.
Title VII bans discrimination against an employee or job applicant “because of such individual’s ... sex,” among other protected characteristics.
Guidance from the federal Office of Personnelsays that transgender individuals “are people with a gender identity that is different from the sex assigned to them at birth.” Gender identity is defined as an individual’s “internal sense of being male or female.”
No federal law prohibits discrimination against transgender people, but it is illegal in 16 states and District of Columbia. However, it’s clear that transgender bias has become a priority for federal officials. Last fall, the EEOC filed its first two lawsuits against employers alleging discrimination against transgender employees.
Holder wrote, “After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination ‘because of ... sex’ includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”
Holder acknowledged that “Congress may not have had such claims in mind when it enacted Title VII.” However, he cited the Supreme Court’s 1989 decision in PriceWaterhouse v. Hopkins, in which the Court “made clear that Title VII must be interpreted according to its plain text.”
Advice: Consider adding transgender bias language to your anti-discrimination policy.