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Last week, U.S. Attorney General Jeff Sessions issued a letter announcing that while Title VII provides protections for transgender individuals, it “does not prohibit discrimination based on gender identity per se.” This announcement serves as yet another reversal of the legacy left behind by the Obama administration.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, national origin, religion, and sex. In explaining the new position of the Department of Justice (DOJ) on Title VII, a DOJ spokesperson noted that the Obama administration had expanded Title VII beyond what Congress provided for.

The spokesperson was referring to a 2014 statement issued by former Attorney General Eric Holder, wherein Holder said Title VII’s prohibition against sex discrimination also prohibits discrimination based on an individual’s gender identity, which includes transgender individuals. The U.S. Equal Employment Opportunity Commission (EEOC) under the Obama administration also adopted the position that discriminating against an applicant or employee because of his or her gender identity is akin to sex-based discrimination, which is prohibited by Title VII.

The current EEOC is reviewing Sessions’ letter but has yet to comment on the DOJ’s reverse in direction. As of today, the EEOC’s website reads that it is “responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s …sex (including pregnancy, gender identity, and sexual orientation)…”

It is important to note that Sessions’ recent memo does not undo protections afforded to transgender individuals under various state and local human rights laws. Nor does it change the positions taken by other federal agencies such as the EEOC and Occupational Safety and Health Administration (think: bathroom issues). For now, Trump’s DOJ will forge ahead with its recently announced interpretation of Title VII. Time will tell whether other federal agencies will follow suit.  

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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