In a memo dated Dec. 15 and obtained Thursday by the Washington Blade, Holder says he has determined prohibition on gender discrimination under Title VII of the Civil Rights Act of 1964 also bars discrimination on the basis of gender identity.
“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,” Holder writes.
The memo, addressed to Department of Justice component heads and U.S. attorneys, is sent out after Congress failed to pass before adjourning this year any version of the Employment Non-Discrimination Act to enshrine into law explicit protections on the basis of sexual orientation and gender identity.
According to a news statement accompanying the memo, the document is intended to foster consistent treatment of claimants throughout the government and to clarify the Justice Department’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals.
As a result of his determination, Holder says in the memo the Justice Department will no longer assert Title VII’s prohibition of gender discrimination “does not encompass gender identity per se (including transgender discrimination).”
It remains to be seen what consequences the memo will have on individual claims of transgender discrimination in the workforce. Holder says the memo isn’t intended to “otherwise prescribe the course of litigation or defenses that should be raised in any particular employment discrimination case.”
“The application of Title VII to any given case will necessarily turn on the specific facts at hand,” Holder writes. “My hope, however, is that this clarification of the Department’s position will foster consistent treatment of claimants throughout the government, in furtherance of this Department’s commitment to fair and impartial justice for all Americans.”
The determination marks a shift from the Justice Department’s earlier interpretation of the law. According to the memo, the department under the Bush administration in 2006 stated Title VII’ s prohibition of discrimination based on sex doesn’t cover discrimination based on transgender status in the case of Schroer v. Library of Congress. The district court ultimately rejected that position, which ruled in favor of the plaintiff.
Holder cites in his memo decisions from courts that have ruled Title VII covers discrimination against transgender people, such as U.S. Eleventh Circuit Court of Appeals decision in Glenn v. Brumby, although he acknowledges other courts haven’t made the same reading of the law.
Also cited in the memo is the 2012 decision of Macy v. Holder by the U.S. Equal Employment Opportunity Commission, which determined transgender people can sue under Title VII. Holder also notes President Obama signing an executive order in July explicitly prohibiting federal contractors from engaging in discrimination on the basis of sexual orientation and gender identity.
“It follows that, as a matter of plain meaning, Title VII’s prohibition against discrimination ‘because of … sex’ encompasses discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether,” Holder writes.
Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement the Holder memo will aid transgender workers, who are at a higher risk of facing discrimination in the workforce.
“The decision by Attorney General Holder to fully embrace the legal standard set forth in Macy will go a long way towards advancing equality for the transgender community,” Warbelow said. “Transgender people continue to face some of the highest levels of discrimination in the workplace. We are thrilled to see the Department of Justice take this important step.”
The statement from HRC says the organization continues to seek explicit, legislated protections for LGBT people at all levels of government.
One question is whether the Justice Department will also interpret the prohibition on gender discrimination under Title VII to also cover claims based on sexual orientation. In response to pending litigation filed by Peter TerVeer, who says he was fired by the Library of Congress because for being gay, the Justice Department has said he made inadequate claims to demonstrate he has standing to sue under Title VII.
The idea that Title VII provides coverage to workers on the basis of sexual orientation isn’t as firmly established by courts as the idea that existing law cover transgender workers.
Nonetheless, EEOC Commissioner Chai Feldblum has asserted lesbian, gay and bisexual people can seek relief under Title VII based on the Macy decision, even though it only explicitly talks about anti-trans bias.
The Washington Blade has placed a request in with the Justice Department to inquire if the Obama administration is considering interpretation of Title VII to cover claims based on sexual orientation.
Ilona Turner, legal director for the San Francisco-based Transgender Law Center, said her organization is “thrilled to see” the U.S. government will no say longer transgender are excluded from protection under the law.
“This announcement will have far-reaching effects for transgender people both within the federal workforce and beyond, influencing the courts as well as other employers looking at their legal obligations under Title VII,” Turner said. “Our communities remain disproportionately unemployed and living in poverty. Legal protections against discrimination can make a real difference.”