Sessions is Taking Away Workplace Protections for Transgender Employees

A new memo reverses Obama-era policy protecting transgender workers under Title VII.

U.S. Attorney General Jeff Sessions attends the installation of Federal Bureau of Investigation Director Christopher Wray at FBI headquaters.Chip Somodevilla/Getty Images News

Attorney General Jeff Sessions has issued a memo reversing a federal policy on workplace discrimination against transgender employees, according to a memo first reported by Buzzfeed News Wednesday. 

“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,” Sessions writes

Under the Civil Rights Act of 1964, Title VII “prohibits employment discrimination based on race, color, religion, sex, and national origin.” In 2014, then-Attorney General Eric Holder issued a memo clarifying that Title VII’s ban includes “discrimination based on gender identity, including transgender status.”  

“The federal government’s approach to this issue has also evolved over time,” wrote Holder in the 2014 memo. Two years earlier, the Equal Employment Opportunity Commission—which enforces the federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex, national origin, age, disability or genetic information—had ruled that “discrimination on the basis of gender identity is discrimination on the basis of sex.” The 2014 memo affirmed that interpretation of Title VII workplace protections.

Sessions’ memo is a direct reversal of this policy. “Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” the memo explains. “This is a conclusion of law, not policy. … As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.”

On Thursday, Kris Hayashi, executive director of the Transgender Law Center, issued a statement arguing that Sessions’ move “is a vicious action intended to cause confusion where there was none, with the goal of singling out transgender people and making it harder for us to survive and thrive in this country.”

The memo, though, makes the point that, “The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections.”

Advocates of transgender rights have taken a drastically different view. 

“By methodically undermining civil rights law, the Department of Justice under Trump and Sessions has committed—and emboldened others to commit—violence and terror against immigrants, Muslims, LGBT people, Black people, and communities of color more broadly,” Hayashi’s statement reads. “This memo is yet another attack in that vein, with the agency charged with upholding the law now encouraging employers to illegally discriminate against transgender people.”

Mara Keisling, executive director of the National Center for Transgender Equality, echoed this sentiment in remarks to the Atlantic: “According to Sessions, an employer is free to hang a ‘Transgender Need Not Apply’ sign in their window. Fortunately, he is dead wrong on the law.”