Justice department: sex discrimination ban does not protect transgender people

Frederick Owens
October 6, 2017

On Oct. 5, an internal DOJ memo revealed that Sessions had reversed a policy from the Obama administration that had protected transgender employees under the 1964 Civil Rights Act's Title VII, which protects workers from being discriminated based on their sex, BuzzFeed News reports.

"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 reads.

As Buzzfeed News' Dominic Holden first reported, Sessions on Wednesday rescinded that government policy.

"The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals", Sessions wrote in his memo.

Sessions wrote in a memo that a landmark 1964 civil rights law does not apply to gender identity, despite former President Barack Obama expanding that definition when he was in office. The Equal Employment Opportunity Commission and various federal courts have determined sex discrimination does, indeed, include gender identity and, therefore, transgender rights. Sessions's Justice Department is intent on kicking progress in the teeth: In his mind, Title VII specifically protects "men and women", meaning that the Justice Department could find itself up fighting its own employees in court. "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".

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But in a statement, Devin O'Malley, a Justice Department spokesman for civil rights issues, framed Mr. Sessions's decision in terms of obeying the rule of law. By reinterpreting our employment laws to try to stop protecting transgender people from discrimination, Donald Trump, Mike Pence, and Jeff Sessions have revealed their real goal: "turn the clock back to a time when life was even more hard for LGBTQ people-transgender individuals, in particular".

But LGBT-rights advocates assailed the reversal as the latest in series of Trump administration actions targeting their constituency. "Sessions is openly directing the [Justice] Department to ignore their responsibilities in protecting the civil rights of all Americans".

"The Department of Justice can not expand the law beyond what Congress has provided", he said.

"Transgender individuals are among some of our nation's most vulnerable communities and they experience discrimination in virtually every area of life based on their sex", Clarke said.

"The memo is so weak and that analysis is so thin, that courts will recognize it for what it is - a raw political document and not sound legal analysis that should be given any weight by them", McGowan said, according to BuzzFeed.

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