U.S. Department of Justice Memo: Sex Discrimination Law ‘Does Not Refer to Gender Identity’

WASHINGTON — Attorney General Jeff Sessions has issued a memo revoking a previous determination by Obama Attorney General Eric Holder that Title VII of the Civil Rights Act of 1964 includes gender identity.

“Title VII expressly prohibits discrimination ‘because of … sex’ and several other protected traits, but it does not refer to gender identity. ‘Sex’ is ordinarily defined to mean biologically male or female,” the memo, issued on Wednesday to federal prosecutors, read.

It noted that the U.S. Supreme Court has similarly concluded in legal precedent that “[t]he critical issue, Title VII indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment [or other employment actions] to which members of the other sex are not exposed.”

“Although Title VII bars ‘sex stereotypes’ insofar as that particular sort of ‘sex-based consideration’ causes ‘disparate treatment of men and women,’ Title VII is not properly construed to proscribe employment practices (such as sex-specific bathrooms) that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex,” the memo continued.

Therefore, “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,” Sessions concluded.

Consequently, he withdrew the Obama administration’s determination that Title VII pertains to transgenders and advised that the Department of Justice (DOJ) will take the position that it does not unless the courts rule otherwise.

“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 wrote in 2014. “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.”

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Sessions noted that his revocation of Holder’s memo should not be construed as a license to mistreat those who suffer from gender dysphoria, nor does it affect the federal Hate Crimes Prevention Act or the Violence Against Women Reauthorization Act. He vowed to continue to “vigorously” enforce such laws, including in regard to crimes against those who present themselves as “transgender.”

The DOJ says that it simply cannot read into the statute what Congress has not expressly stated in the text.

“The Department of Justice cannot expand the law beyond what Congress has provided,” spokesperson Devin O’Malley outlined, according to CNN. “Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action. This department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation.”

As previously reported, in July, the DOJ filed an amicus brief in the case of Zarda vs. Altitude Express to similarly assert that Title VII does not pertain to homosexuality. The case involved a skydiving instructor who was fired for failing to “provide an enjoyable experience for the customer” after a man complained that the instructor had informed his girlfriend that he was homosexual.

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse that similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” it wrote.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the DOJ stated. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

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