Justice department: sex discrimination ban does not protect transgender people

Saul Bowman
October 6, 2017

But in his Wednesday memo, Sessions wrote that the law as written only applies to discrimination between "men and women", and announced that the Justice Department would "take that position in all pending and future matters".

If you thought from a few offhand comments during the election that Donald Trump would at least be forward-thinking when it came to transgender discrimination, we're pretty sure he blew that out of the water with his ludicrous announcement of a military ban. This is a conclusion of law, not policy. The Equal Employment Opportunity Commission and various federal courts have determined sex discrimination does, indeed, include gender identity and, therefore, transgender rights. Sessions's memo effectively strips Title VII of any important nuance-part of his attempt to help Trump make America great again via regressive policies and practices. 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".

Transgender people face extraordinary discrimination and harassment every day.

"Jeff Sessions's D.O.J. has made it its mission to oppose, rather than enforce, civil rights law", said Sharon McGowan, a former Justice Department civil rights lawyer who is the director of strategy for Lambda Legal, which advocates civil rights for lesbian, gay, bisexual and transgender people. "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". This spring, the departments of justice and education rescinded the Obama-era guidance instructing schools to give trans students unfettered access to bathrooms matching their gender identities.


A spokesperson for Justice, Devin O'Malley, accused the Obama administration of going beyond what Congress allowed in its legislation.

"The Sessions DOJ is trying to roll back the clock and pretend that the progress of the last decade hasn't happened", McGowan added.

Under the Obama administration, Attorney General Eric Holder issued a policy memo explaining that the federal government's approach on this issue had "evolved" over time. On his watch, the Civil Rights Division has also changed its position on whether Texas' strict voter identification law was discriminatory, pulled back from using consent decrees to reform troubled police departments, and launched a project to scrutinize affirmative action practices in university admissions.

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