Presented by the Employment Law Practice Group

Legal Updates for Employment Law

December 4, 2017

Reversing Course: DOJ Holds Protections of Title VII Do Not Extend to Transgender/Gender Identity Discrimination

In October 2017, the United States Department of Justice (DOJ), through Attorney General Jeff Sessions, issued a memorandum articulating the DOJ’s new stance on the scope of protection afforded to transgender workers under Title VII of the Civil Rights Act of 1964. Pursuant to the memorandum, the DOJ will now take the position that Title VII does not prohibit discrimination against transgender workers as a form of sex discrimination.

According to Attorney General Sessions, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The DOJ will now adhere to the rationale that the term “sex” as it is used in Title VII is “ordinarily defined” to mean biologically male or female. Under this definition, Title VII does not extend to transgender/gender identity discrimination because it is not explicitly enumerated in the statute as a protected class. Moving forward, the DOJ will assert this newly announced position in all pending and future litigation matters, except where a controlling lower court precedent holds otherwise, in which event the issue should be preserved for future review.

In issuing the directive, Sessions and the Trump administration have reversed the position taken by former Attorney General Eric Holder and the Obama administration, which had maintained that discrimination “‘because of . . . sex’ includes discrimination because an employee’s gender identification is a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.” The current DOJ has criticized this position as overreaching, noting that the law cannot be expanded beyond what Congress has provided.

At the present time, whether or not Title VII’s prohibition on “sex” discrimination extends to gender identity discrimination and transgender workers remains unresolved by the United States Supreme Court. However, an increasing number of federal district courts have extended the “sex stereotyping” theory of liability under Title VII to discrimination against transgender employees pursuant to the Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Moreover, the DOJ's new position conflicts directly with the current position held by the EEOC, which has interpreted Title VII’s ban on sex discrimination as extending to discrimination based on gender identity. In addition, many states and municipalities have also instituted their own regulations prohibiting transgender discrimination in the workplace.

At this time—and without definitive answer from the Supreme Court as to whether Title VII extends to sexual identity discrimination—employers are well advised to proceed with caution in order to minimize the risk of liability stemming from transgender discrimination in the workplace. In particular, although a definitive ruling has yet to be handed down on this hot-button issue, employers should consider including gender identity/expression as a protected group in connection with their equal employment policies and procedures, which can significantly reduce the risk of potential discrimination litigation. In addition, employers should ensure that all company policies and procedures are modified as necessary to comply with changes in this rapidly developing area of law. At the same time, employers should ensure that they provide effective training to employees—and management in particular—on how to prevent, and respond to, any forms of discrimination or harassment in the workplace arising from a worker's gender identity or expression.

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