On Wednesday, Attorney General Jeff Sessions issued a memo rescinding workplace protections for transgender people.
BuzzFeed procured Sessions' memo reversing the Obama Administration policy, which reads, in part: "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." Following the issuance of this memo, the Justice Department now expects the rest of the federal court system to fall in line with their interpretation, going against the increasing number of federal court rulings that protect trans employees.
The protections were previously put in place through a memo issued by the Obama Justice Department. In that memo, originally obtained by the Washington Blade, then-Attorney General Eric Holder said that the protections offered by the Civil Rights Act extended to trans people, making discrimination on the basis of gender identity illegal. He 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."
How to interpret Title VII has been an ongoing topic of debate for quite some time, though, with more progressive, liberal administrations often making attempts to interpret the Civil Rights Act's protections on the basis of sex to also mean that the government must offer protections on the basis of gender identity and sexual orientation as well. One of the biggest fears going into this current administration was that the progress and protections established for the entire LGBTQ community over the past eight years (and longer) would vanish. With this news of Sessions' memo from Wednesday, those fears are coming true.
The administration's reversal of LGBTQ protections has been an ongoing one since Trump took office. Just last week, Slate reported that the Department of Justice filed an amicus brief arguing that Title VII also doesn't protect employees from discrimination on the basis of sexual orientation. The brief read, in part: "Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct. There is a common sense, intuitive difference between sex and sexual orientation." However, the Equal Employment Opportunity Commission interprets Title VII's protection on the basis of sex to also mean employees are protected against anti-gay discrimination, as Slate pointed out in their report on the brief. It's been like that for over 15 years, spanning multiple administrations, and despite that fact, the current DOJ is moving to argue that they've all been incorrect interpretations.
Going further back, Towleroad reported back in March that Trump signed an order essentially allowing federal contractors to discriminate against LGBT workers. Trump's order rescinded another order set forth by Obama, which required federal contractors to prove that they're complying with 14 different federal laws. One of those laws protects employees based on sexual orientation and gender identity. Though Trump's order only applies to federal contractors, it was still a symbolic move — in rescinding it, Trump signaled to the rest of the world that enforcing such protections weren't a priority for this administration.
The Justice Department appears set on disregarding how the thinking around workplace protections has changed in the last decade. Sharon McGowan, a former lawyer with the Justice Department's Civil Rights Division spoke with BuzzFeed about Sessions' latest memo, saying, "The memo is devoid of discussion of the way case law has been developing in this area for the last few years. It demonstrates that this memo is not actually a reflection of the law as it is — it's a reflection of what the DOJ wishes the law were."
This move by the DoJ comes at a time when, according to the Transgender Law Center, laws regarding trans people are considered "low" or "negative" for over half the country, despite the trends in case law.
Sessions has made no secret of his disdain for progressive politics and civil rights groups. It came out back during his 1986 confirmation hearings for a federal judgeship, as the HuffPo reported last year, when one colleague said that Sessions referred to the ACLU and NAACP as "un-American" and said they "did more harm than good when they were trying to force civil rights down the throats of people who were trying to put problems behind them."