Attorney General Jeff Sessions took action Wednesday to try to turn back the clock on the steady progress that has been made toward providing equal treatment for transgender Americans in the workplace. Entirely ignoring the decade-long trend of courts viewing "sex" discrimination in Title VII of the Civil Rights Act of 1964 as protecting transgender workers, Sessions issued a memo saying the new policy of the federal government is exactly the opposite. Buzzfeed's Dominic Holden writes:
Sessions’ directive, obtained by BuzzFeed News, says, “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.”
It adds that the government will take this position in pending and future matters, which could have far-reaching implications across the federal government and may result in the Justice Department fighting against transgender workers in court.
Sessions is firmly planting his flag in 20th century territory here as a drag against the arc of moral justice. As Sharon McGowan, a former Civil Rights Division attorney who now works for Lambda Legal, explained:
"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." [...]
The memo reflects the Justice Department's aggression toward LGBT rights under President Trump and Sessions, who reversed Obama-era guidance that protects transgender students after a few weeks in office. Last month, Sessions filed a brief at the Supreme Court in favor of a Christian baker who refused a wedding cake to a gay couple. And last week, the department argued in court that Title VII doesn't protect a gay worker from discrimination, showing that Sessions will take his view on Title VII into private employment disputes. [...]
McGowan, from Lambda Legal, counters, "The memo is so weak and that analysis is so thin, that courts will recognize it for what it is — a raw political document and not sound legal analysis that should be given any weight by them."
Former Attorney General Eric Holder reached the exact opposite conclusion concerning federal government policy in a 2014 memo, writing, "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.”
Sessions' directive also puts DOJ policy in conflict with federal law, since President Obama modified executive orders 11478 and 11246 to prohibit discrimination against transgender employees of both the federal government and federal contractors.
Supposedly, Donald Trump plans to keep those orders in place, if you can believe anything the White House says. From January:
The White House said on Monday that President Trump would leave in place a 2014 Obama administration order that created new workplace protections for gay, lesbian, bisexual and transgender people. [...]
“President Trump continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election,” the statement said. “The president is proud to have been the first ever G.O.P. nominee to mention the L.G.B.T.Q. community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.”
We'll see if that holds. In the meantime, the rabid Jeff Sessions is taking a hatchet to LGBTQ advances whenever and wherever he can find a way.