Last week, Attorney General Jeff Sessions issued a memorandum to U.S. Attorneys announcing that the Department of Justice has reversed its position on the coverage of transgender people as protected under Title VII of the Civil Rights Act of 1964. The Obama DOJ took the position that the U.S. Supreme Court’s Price Waterhouse v. Hopkins decision prohibits discrimination on the basis of sex stereotypes. By definition, therefore, discrimination on the basis of gender identity, including against transgender people, is based on a stereotype of how people of a certain biological gender should act and appear.
According to the new memo, DOJ is reversing the prior interpretation because Title VII does not explicitly mention gender identity among its protected classifications. Unless Congress were to amend Title VII, the memorandum concludes that the law’s prohibition against sex discrimination only applies to actions based on biological gender. DOJ’s explanation makes no mention of sex stereotyping or the string of federal cases that have concluded that gender identity falls with the scope of Price Waterhouse.
This decision also places DOJ in opposition to the position adopted by the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII. Earlier this year, DOJ adopted a similar interpretation of Title VII as excluding protections on the basis of sexual orientation. Federal courts considering this legal issue have questioned the legal impact of DOJ’s position given the contrary one taken by the EEOC.
Unless the EEOC changes its position on this issue, the DOJ memorandum may have little practical effect. DOJ may decide to weigh in on pending transgender discrimination claims brought under Title VII through amicus filings. However, federal courts may conclude that DOJ’s opinion on this topic does not trump the precedent set by Price Waterhouse, or the position of the agency that litigates Title VII cases on behalf of the U.S.