U.S. Department of Justice Rescinds Policy Protecting Transgender Employees

By Jennifer A. Dunn and Melissa D. Sobota - Franczek Radelet P.C.

October 17, 2017

On October 4, 2017, the United States Department of Justice, through Attorney General Jeff Sessions, issued a memorandum rescinding an Obama-era policy protecting transgender employees from employment discrimination pursuant to Title VII of the Civil Rights Act of 1964.

Attorney General Sessions stated that the prior finding by Attorney General Eric Holder that Title VII’s prohibition on sex discrimination encompassed discrimination based on gender identity included transgender individuals was incorrect. Sessions proclaimed that, although federal law, including Title VII, provides protections to transgender individuals, it does not prohibit discrimination based on gender identity per se. Sessions stated that “this is a conclusion of law, not policy.”

In reaching this conclusion, Attorney General Sessions noted that, while Title VII explicitly prohibited discrimination based on sex, it did not refer to gender identity. He explained that “sex” is “ordinarily defined to mean biologically male or female,” and that, while Congress expressly prohibited discrimination based on “gender identity” in other statutes, its failure to do so in Title VII signifies that Title VII does not encompass discrimination based on gender identity per se.

Attorney General Sessions indicated that the Department of Justice will take this position in all pending and future matters, except where a controlling lower-court precedent dictates otherwise. In situations where there is contrary controlling lower-court precedent, the Department of Justice will preserve the issue for further review.

Attorney General Sessions recognized that the Department of Justice will “continue to affirm the dignity of all people, including transgender people,” and noted that the memorandum should not be construed to condone mistreatment on the basis of gender identity. He also noted that the memorandum was not intended to express a policy view regarding whether Congress should amend Title VII to provide different or additional protections.

While the Department of Justice memorandum may remove employment protections for transgender individuals in some places, it does not lift them completely. Several states and municipalities, including Illinois, have discrimination laws such as the Illinois Human Rights Act that continue to prohibit discrimination against transgender individuals in housing, employment, and public accommodations. Therefore, employers should check their state and local laws to ensure they are properly providing any required protections for transgender individuals.