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Justice Department Reverses Obama Era Policy On Discrimination Against Transgender Americans

Transgender Bathroom Sign

In yet another shift from the policies of the Obama Administration, this week the Justice Department announced that it was reversing the Obama Justice Department’s position that private discrimination against transgender Americans was barred under the Civil Rights Act of 1964 and other similar laws:

WASHINGTON — Attorney General Jeff Sessions on Thursday ordered the Justice Department to take the position in court cases that transgender people are not protected by a civil rights law that bans workplace discrimination based on sex. The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.

The dispute centers on how to interpret employment protections based on “sex” in Title VII of the Civil Rights Act of 1964. In December 2014, the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view “sex” as encompassing gender identity, extending protections to transgender people.

But in a two-page memo to all United States attorneys and other top officials, Mr. Sessions revoked Mr. Holder’s directive. The word “sex” in the statute, Mr. Sessions said, means only “biologically male or female,” so the Civil Rights Act does not ban “discrimination based on gender identity per se, including transgender status.”

He added that the department “will take that position in all pending and future matters,” except in cases in which a controlling lower-court precedent dictated otherwise, in which case it would reserve the option to revisit the issue on appeal.

The policy change comes as the Justice Department is trying to get out of an employment discrimination lawsuit in Oklahoma that it filed alongside a transgender plaintiff, noted David Lopez, a former general counsel to the Equal Employment Opportunity Commission. A judge appointed by President George W. Bush had previously ruled in that lawsuit that the Civil Rights Act does cover gender identity, agreeing with the department’s Obama-era interpretation.

Federal appeals courts have reached varying views on whether the Civil Rights Act’s ban on sex discrimination extends to gender identity, but five circuits have ruled that it does, said James D. Esseks, the director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & HIV Project.

Mr. Sessions’s move means the Justice Department will no longer side with transgender plaintiffs in workplace discrimination lawsuits invoking the Civil Rights Act. It will either stay on the sidelines or tell courts that the law should not be interpreted as banning discrimination by the employers.

That position is not just a reversal from the Obama-era stance, but it would also put the Justice Department at odds with the view of the Equal Employment Opportunity Commission, another part of the federal government that deals with discrimination in the workplace.

“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. “But no matter how many memos he issues, the law is on our side. And so are the courts increasingly.”

Mr. Sessions’s move came three months after the Justice Department, without being asked for its opinion, filed a brief before an appellate court in a private workplace discrimination lawsuit, taking the position that the Civil Rights Act’s ban on sex bias does not cover sexual orientation.

While that move was also greeted with dismay by civil rights advocates, it was less of a reversal than Mr. Sessions’s memo on Thursday, because the Obama administration never took the position that the bar to “sex” discrimination should be interpreted as extending to sexual orientation. Instead, it tried to avoid the question, while welcoming the prospect that the law might “continue to evolve” in that area.

The Supreme Court has not resolved the question of whether “sex” can mean sexual orientation or gender identity. But in a 1989 case, Price Waterhouse v. Hopkins, the Supreme Court ruled that the ban on “sex” discrimination does encompass discrimination against people who fail to conform to gender stereotypes. That case involved a woman who was deemed insufficiently feminine, not a transgender person.

Mr. Sessions’s policy directive was the latest in a series of steps the Justice Department has taken since he became attorney general to curtail the reach of civil rights laws. 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 began a project to scrutinize affirmative action practices in university admissions.

This isn’t the first time that the Trump Administration has reversed the legal interpretations of the Obama Administration as it applied to those who identify as transgendered. Early in the Administration, the Justice and Education Departments revoked guidelines that their Obama Era counterparts had issued regarding how schools should handle transgender students and specifically such issues as which bathroom and locker room facilities such students should be permitted to use. In both cases, the position that the Obama Administration took relied on the argument that the provisions of the Civil Rights Act of 1964 and other subsequent legislation which bar discrimination based on “sex” also cover discrimination based on “gender identity.” As Ive noted before, this argument has always seemed to me to be especially weak given the fact that it is clear that the drafters of the Civil Rights Act and the legislation that followed it did not even consider the idea that they were writing a law that would cover a form of discrimination other than what seems to be clearly intended by the statutes themselves, namely discrimination based on the biological gender of the person making the claim. The argument that statues written fifty years ago can or should be reinterpreted to cover something that they clearly were not intended to is a particularly dangerous one, and one that courts ought to avoid. Whether our laws should be expanded to cover other forms of discrimination is, in the end, a legislative determination not one that lawyers or judges should be deciding on their own.

The fact that the Justice Department is changing policies doesn’t mean this argument is over, of course. Private litigants have been using the argument first raised by the Obama Administration in a variety of cases across the country. Most recently, that argument played a role in a ruling by the Seventh Circuit Court of Appeals that held that the Civil Rights Act, as well as Title IX, in favor of a transgender student who was suing his school district for the right to use the boys bathroom at his school. The argument is also being advanced in a number of other lawsuits around the country. Eventually, one or more of these cases will likely make its way to the Supreme Court where it will be decided once and for all. Given the current ideological balance on the Court, the likelihood seems to be that the Court will rule against those seeking to stretch statutory language to cover something it clearly wasn’t intended to cover. The one caveat here would be Justice Kennedy. As I’ve noted in the past, Kennedy has been at the forefront of the Court’s series of opinions that have advanced LGBT rights as far as they’ve come, from the 1996 decision in Roemer v. Evans to the 2015 ruling in Obergefell v. Hodges which found that laws against same-sex marriage violated the Equal Protection Clause of the 14th Amendment. If Kennedy were still on the Court when such a case came before it, he would end up being the deciding Judge on this issue and many might assume that he’d be more inclined to be sympathetic to the argument of transgender Plaintiffs than any of the other Republican-appointed Justices. If, however, Kennedy is retired by the time one of these cases get to the high court and replaced by another conservative Justice then it’s likely that the Justice Department’s position would prevail. All of that is speculation, of course, and much will depend on how lower courts deal with this issue in the coming years. For now, though, this is clearly a setback for those who have been seeking to use existing laws to establish claims on behalf of transgender Plaintiffs.

Update: Here’s the Dept. of Justice memorandum:

Justice Dept. Memo on Transgender Distrcimination by Doug Mataconis on Scribd

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    The only surprising thing is that it took them until October to get around to this. I suppose there were puppies to kick or something, so he couldn’t get to it for over six months.

    The understanding of sex and gender has changed quite a bit since the law was written, and while it wasn’t the intent of the legislators to protect transgender people, I think the existing language should protect them —but I’m not a lawyer, so what do I know?

    What I do know is this: there are two very different definitions of freedom in this country and they are coming into conflict more and more. There’s the freedom of the wealthy and powerful to do what they want without government interference (employers who want to fire a transgender employee because they are transgender, for instance); and then there’s the freedom for all individuals to do what they want with minimal interference from either government or the wealthy and powerful.

    Like or Dislike: Thumb up 12 Thumb down 0

  2. al-Ameda says:

    This administration, Trump’s routine dalliances with idiocy notwithstanding, is undertaking a wholesale purge of any evidence and manifestation of the Obama presidency. It feels like a Dog Whistle Race War.

    MAGA? More like: Make America 1928 Again.

    Like or Dislike: Thumb up 7 Thumb down 0

  3. Teve tory says:

    It’s like the iran deal. And obamacare. If obama did it it’s bad who gives a shit about details, those are for gay intellectuals.

    Trump is like the gop turned into a single person.

    Like or Dislike: Thumb up 8 Thumb down 0

  4. OzarkHillbilly says:

    @Gustopher:

    (employers who want to fire a transgender employee because they are transgender, for instance)

    They already were free to fire all their transgender employees, they just had to fire all their other employees too and close up shop.

    DOH! Wait a minute, you meant the freedom to ignore all laws anywhere that impinge on their dog given right to make money by any means they desire like Uber, right? My bad.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. Slugger says:

    I predict that people outside the binary polarity of sex and gender will not go back into the closet. The effects of the Stonewall mobilization will not be reversed. It is true that they are a minority, but almost all of us have a neighbor, a relative, or a coworker who is an ok person, ok to talk to, and ok to work with and is outside the bivalent world. Thank you and a big salute to all of you; never go back! We support you!

    Like or Dislike: Thumb up 4 Thumb down 0

  6. grumpy realist says:

    I suspect that a lot of the fuss and fury about transgenderism would die down if we could pin down better definitions of what some of this stuff is. The fear that everyone seems to have is of a guy dressing up in a dress and barging his way into the ladies’ restroom, claiming transgenderism, to then either ogle or rape women. So there’s the feeling that if you’re going to head into the bathroom reserved to the sex opposite that of your birth sex, you better have “skin in the game”–have gone through enough treatments so that you are in fact an actual transgender rather than someone claiming such. Which is a bit of a problem because AFAIK the doctors insist that you live out the life of someone of the opposite sex for a year or so before they’ll even start doping you with hormones etc.

    So the major fear isn’t of transgenders but of men falsely claiming to be transgender, no?

    Like or Dislike: Thumb up 3 Thumb down 0

  7. Gustopher says:

    @grumpy realist: You’re overthinking it. Bigots are bigots because they fear and hate that which is different, not because they don’t understand them. No detailed explanations of transgender, gay, atheist or black will solve that.

    The bathroom “issue” or the “they is a singular pronoun and now we are teaching children bad grammar” “issue” are just excuses. If you were to find a workable solution that everyone was comfortable with, the bigots would just move on to a new “issue”.

    Like or Dislike: Thumb up 8 Thumb down 1

  8. OzarkHillbilly says:

    @grumpy realist:

    So the major fear isn’t of transgenders but of men falsely claiming to be transgender, no?

    No, they’re afraid of the boogeyman.

    Like or Dislike: Thumb up 5 Thumb down 2

  9. Mikey says:

    @grumpy realist:

    The fear that everyone seems to have is of a guy dressing up in a dress and barging his way into the ladies’ restroom, claiming transgenderism, to then either ogle or rape women.

    To echo @Gustopher, that’s not a fear, it’s a pretext.

    Like or Dislike: Thumb up 4 Thumb down 1

  10. Davebo says:

    @OzarkHillbilly:

    DOH! Wait a minute, you meant the freedom to ignore all laws anywhere that impinge on their dog given right to make money by any means they desire like Uber, right?

    Well, except Uber loses money by the train load!

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Tyrell says:

    I had thought that the restroom hassle was over. This is and has been much ado about nothing.I had never heard any complaining except about no towels or trash in the floors. I don’t pay much attention to who is in the restroom when I go shopping, the theme parks, movie theater, or restaurants. I do pay attention to cleanliness and the supplies.
    Women are very picky about the seats and the cleanliness. Most don’t particularly care for men using them, which should not happen anyway.
    Women’s public restrooms are usually woefully too small. Often the men will stop and let women use theirs if there is a line coming out of the ladies room.
    Under no circumstances should the Federal government be poking their noses into the restrooms of private businesses, stores, or schools. Let the locals solve the problems, if any. It is their property. I would think that the Federal government has enough to do besides worrying about restrooms.
    Forcing a business, store, or school to remodel, or refit their restrooms would be expensive. Remodeling restrooms is complicated: you have to break up floors, walls, move drain pipes, and re-route water lines.
    These family type restrooms are fine. I don’t know why those would not satisfy people. I do think this whole thing was created by a few people trying to create a big scene.
    Signs in restrooms: “This restroom inspected by Phil Johnwater, health inspector:,
    “Fixtures installed by Fred Philpott and Sons Plumbing Co.”
    “Restrooms maintained and leaned by Plushbottoms Janitor Supply Co.”
    Restroom best sellers: “The Bathroom Reader”, “The Book of General Ignorance”, “Middle School Restroom Guide”
    “Under the Stalls” by Seymour Butz.

    Like or Dislike: Thumb up 1 Thumb down 0

  12. Daryl's other brother Daryll says:

    OT…
    Absolutely loving the feud between Corker and the orange comb-over.
    Don’t agree with Corker about much but he is consistent and rigorous.
    And I agree with him that the White House is now a day-care center.
    Question…what previous White House has been ridiculed to this level by members of its own party? The SOS calls him a moron? A very influential Senator says it’s day-care?
    Just wow….

    Like or Dislike: Thumb up 3 Thumb down 0

  13. gVOR08 says:

    Democrats didn’t create transgender people, they exist. Transgender people need to use bathrooms. My understanding would be that they generally choose their room and no one notices. But schools have to make decisions and it only seems reasonable to have a policy.

    The only reason this is now an issue is that the GOPs, who can’t run on their economic policies, are eager to exploit any social issue they can find. Why is the country so polarized? Because GOPs want it that way.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. Tyrell says:

    @gVOR08: It seems to me that this did not become an issue until Obama got in there.

    Like or Dislike: Thumb up 0 Thumb down 2

  15. gVOR08 says:

    @Tyrell: Isn’t that what I said? The administration dealt with it as an administrative issue and the GOPs saw the opportunity to oppose anything O did and make a wedge issue out of it.

    Like or Dislike: Thumb up 2 Thumb down 0

  16. Guarneri says:

    …girls will be boys and boys will be girls, it’s a mixed up muddled up shook up world….

    Like or Dislike: Thumb up 0 Thumb down 2