The civil rights law that prohibits discrimination in the workplace does not apply to transgender employees, Atty. Gen. Jeff Sessions has decided, continuing a shift by the Justice Department against the more LGBTQ-friendly policies championed by the Obama administration.
Sessions reversed a 2014 decision by a predecessor, Eric H. Holder Jr., that Title VII of the Civil Rights Act, which prohibits discrimination based on sex, also prohibits employers from taking any actions based on a person’s gender identity.
Although it “provides various protections to transgender individuals,” Title VII does not prohibit discrimination based on someone’s gender identity because the law, written in 1964, does not mention it, Sessions wrote in a memorandum: “ ‘Sex’ is ordinarily defined to mean biologically male or female.”
“The Department of Justice cannot expand the law beyond what Congress has provided,” said Devin O’Malley, a Justice Department spokesman. “Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action.”
Sessions went on to say that he does not “condone mistreatment on the basis of gender identity” and is not expressing an opinion as to whether Congress should change the law. As a U.S. senator, Sessions voted against a 2009 law that extended hate crime protections to sexual orientation, but he said the department would continue to “vigorously” prosecute such crimes, including ones against transgender Americans.
The Trump administration moved early to start scuttling Obama’s transgender policies. In February, the administration revoked an Obama-era rule instructing local school districts to allow students to choose which bathrooms to use based on their gender identity.
The memo on Title VII follows another decision this summer to intervene in a discrimination case brought by Donald Zarda, a skydiving instructor in New York who claimed he was fired because he was gay. In a brief filed July 26 — the same day that President Trump announced on Twitter that transgender people would not be allowed to serve in the military — the Justice Department argued that the civil rights law did not apply to cases of discrimination based on sexual orientation.
Also this week, the Justice Department filed court papers defending Trump’s right to exclude transgender people from serving in the military. A suit that seeks to protect transgender soldiers is premature, the Justice Department said, because the Trump administration hasn’t come up with a final policy. The department also argues that Trump has a right to exclude transgender people from serving if he believes they would damage a military unit’s cohesion, drawing comparisons to a list of physical infirmities:
“A variety of physical and mental conditions presumptively bar entry into the armed forces, including asthma, history of severe migraines, discrepancies in leg length resulting in a limp, or any curvature of the spine that would prevent one from wearing a uniform properly,” the court papers say.
The latest contraction of Obama’s civil rights policies drew angry denunciations from groups that work for legal protections for gay and transgender people.
“It’s another example of how, under Jeff Sessions, the Justice Department is no longer in the justice business,” said Sharon McGowan, director of strategy for Lambda Legal, a civil rights group.
McGowan, a former attorney in the Justice Department’s Civil Rights Division who left after Sessions became attorney general, called the policy reversal “nothing short of heartbreaking.”
House Democratic leader Nancy Pelosi of San Francisco was equally scathing.
“From banning transgender service members to dismantling protections for transgender students, this administration has consistently and cruelly put prejudice and bigotry before the civil rights of the American people,” she said in a statement.