The Department of Justice reverses its position on transgender discrimination

Attorney General Jeff Sessions has drafted a memo revising the federal government’s position on gender-identity discrimination and formally withdrawing the previous administration’s memo from December 2014. According to the Department of Justice’s new memo, Title VII only protects discrimination on the basis of “sex,” which is “ordinarily defined to mean biologically male or female.” The memo reaffirms that Title VII bars disparate treatment of individuals on the basis of “sex stereotypes,” but clarifies that Title VII does not prohibit sex-specific bathrooms.

Despite the DOJ’s interpretation of Title VII, the memo goes on to state:

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. 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.

The future remains unclear as to the definition of “sex” under Title VII and how much of an impact this memorandum will have on the courts. Also, the Equal Employment Opportunity Commission has yet to issue a statement in response. As always, the employment lawyers at Bricker & Eckler are available to help navigate the murky waters of Title VII.