In a memo released to all federal prosecutors, Sessions states, “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.”
The memo adds that the U.S government will take this position with regards to all pending and future matters, which could result in the Justice Department fighting against transgender workers in U.S courts. “Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” Session states in the memo. “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.”
This new action has been met with a swift response from transgender advocates including the National Center for Transgender Equality’s Executive Director Mara Keisling, who issued the following statement:
“The Trump/Pence Administration is determined to promote discrimination through a false view of the law that has been rejected again and again by the courts. 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. Neither President Trump nor Jeff Sessions can change the law, but they are determined to sow confusion and put their seal of approval on discrimination.*
“The Attorney General does not get to make law, but he should at least read it. Simply: he is once again abdicating his responsibilities to enforce the law. Courts have repeatedly ruled that transgender people are protected by sex discrimination laws in employment, education, housing and healthcare. We’ll see him in court.”
The move by Sessions contradicts the 2014 guidelines, which stated that transgender workers were protected under Title VII of the Civil Rights Act. In the 2014 memorandum, former Attorney General Eric Holder wrote, “After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’ s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination “because of …sex” includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”
According to the National Center for Transgender Equality, the Sessions memo directly contradicts case law from the U.S. Courts of Appeal for the First, Sixth, Seventh, Ninth, and 11th Circuits, as well as from numerous district courts across the country.