Susan L. Bickley and Emery Gullickson Richards
On October 5, 2017, Attorney General Jeff Sessions reversed the Department of Justice’s (“DOJ”) stance that gender identity is protected as part of the prohibition against “sex” discrimination in Title VII of the Civil Rights Act of 1964. Sessions issued a letter outlining this position to all U.S. attorneys and the leading officials of all federal agencies, stating that while Title VII provides various protections for transgender individuals, the statute “does not prohibit discrimination based on gender identity per se, including transgender status.”
In the letter, Sessions adheres to the rationale that the term “sex” is “ordinarily defined” to mean biologically male or female, and that protection against gender identity discrimination is not encompassed by Title VII because it is not explicitly enumerated in the statute as a protected category. The DOJ justifies its position by reasoning that, if Congress intended to outlaw gender identity discrimination, it would have expressly said so, as it has done in other statutes, including the Hate Crimes Prevention Act and the Violence Against Women Reauthorization Act, but not in Title VII.
The letter also states that the DOJ “will take that position in all pending and future matters” except in circumstances where a controlling lower court precedent dictates otherwise. Even in those instances, Sessions’ directive instructs that the issue should be preserved for potential appellate review, as the issue remains an open question in several appellate courts throughout the nation.
The letter reverses the position taken by former Attorney General Eric Holder in a December 2014 memo that interpreted Title VII as encompassing discrimination claims based on gender identity, including for transgender employees. The Trump Justice Department criticized that position as over-reaching, with spokesman Devin O’Malley commenting that the DOJ “cannot expand the law beyond what Congress has provided.”
In addition to a reversal of the Holder memo, the DOJ’s new position is also at odds with the current position of the U.S. Equal Employment Opportunity Commission. In a continuation of its position under the Obama administration, the EEOC currently advocates that – and processes discrimination charges involving—discrimination against an individual because of gender identity, including transgender status, violates Title VII.
Even before the letter issued, the DOJ had already been taking steps to reverse course. It received attention for extricating itself from a Title VII discrimination case it previously prosecuted on behalf of a transgender professor who sued an employer after being passed over for tenure. Tudor v. Southeastern Oklahoma State University, No. 5:15-CV-00324-C (W.D. Okla.). Though the Obama-era DOJ sided with the plaintiff, under Sessions’ lead, the DOJ has withdrawn its claims on plaintiff’s behalf, leaving the plaintiff to pursue the suit alone.
This newly articulated position by the DOJ comes at a time when the concept of whether “sex” under Title VII encompasses sexual orientation or gender identity remains unaddressed by the Supreme Court. Advocates and lower courts, however, have suggested discrimination against individuals on the basis of their sexual orientation or gender identity is prohibited as a result of the Supreme Court’s ruling in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989). In Hopkins, the Court held that “sex” discrimination includes discrimination against people who fail to conform to gender stereotypes, in that case, a person who was deemed insufficiently feminine. The Supreme Court found that Ms. Hopkins could pursue a Title VII claim by arguing that she suffered sex discrimination by being told she could improve her chances for partnership in the accounting firm if she would “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.” This has provided analogous support for claims that gay and transgender individuals have suffered sex discrimination.
As a result, Title VII litigation will likely continue to press this theory on behalf of transgender individuals who perceive discrimination for not conforming to traditional gender paradigms. The DOJ’s position that discrimination on the basis of transgender status alone is not actionable, however, may make gender identity discrimination claims harder to pursue.