In a Wednesday memo to Justice Department personnel, Attorney General Jeff Sessions reversed an Obama-era policy of applying Civil Rights Act of 1964's protection against sex discrimination to transgender individuals.
Sessions said in the memo, obtained by BuzzFeed News, that the relevant title in the civil rights law “does not prohibit discrimination based on gender identity per se.” That ran contrary to findings from the Equal Employment Opportunity Commission and a host of federal courts.
Eric Holder, former President Barack Obama's attorney general, issued a memo in 2014 equating protections for sex-based discrimination to protections for discrimination based on gender identity.
“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. 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,” Holder reportedly said.
Sessions's memo clarified that his Justice Department would interpret that part of the law to apply only to discrimination between “men and women.”
The attorney general added, however, that he didn't intend to promote mistreatment of transgender individuals:
“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.”
A spokesperson for Justice, Devin O'Malley, accused the Obama administration of going beyond what Congress allowed in its legislation. That, according to O'Malley, necessitated Sessions's memo.
But Sharon McGowan, a former Justice Department lawyer and attorney for an LGBT group called Lambda Legal, criticized the memo as “a raw political document" rather than "sound legal [analysis].” Sessions, McGowan said, appeared to ignore relevant case law in his memo.
“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,” she said.