Acting unilaterally to expand federal civil rights laws to protect
transgenders in the workplace – although Congress has failed to do so – the
Obama Administration has announced that it will push forward with its own
interpretation of Title VII of the 1964 Civil Rights Act.
Reversing
the prior position of the U.S. Justice Department, outgoing Attorney General
Eric Holder has announced that his new interpretation of Title VII has led him
to believe that the federal statute prohibiting employment discrimination on
the basis of sex also applies to transgender people. Going forward, Holder announced, the Civil Rights
Division of the Justice Department will be able to file Title VII claims
against state and local public employers on behalf of transgender individuals
claiming discrimination. The Justice Department does not have authority to sue
private employers, and the new interpretation does not affect that.
Title VII provides that it is
unlawful for an for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” Title VII
applies to private employers with 15 or more employees, including state and
local governments. It also applies to employment agencies and to labor
organizations, as well as to the federal government.
“This important shift will ensure
that the protections of the Civil Rights Act of 1964 are extended to those who
suffer discrimination based on gender identity, including transgender status,”
Holder said in a statement on December 18. “This will help to foster fair and
consistent treatment for all claimants. And it reaffirms the Justice
Department’s commitment to protecting the civil rights of all Americans.”
“The most straightforward reading of
Title VII,” according to Holder, 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.” He acknowledged that “Congress may not
have had such claims in mind when it enacted Title VII.”
On July 21 President Obama had
issued an executive order providing that discrimination based on gender
identity was prohibited for purposes of federal employment and government
contracting.
The federal government’s Office of
Personnel Management defines transgender individuals as “people with a gender
identity that is different from the sex assigned to them at birth," and
defines "gender identity" as an individual's "internal sense of
being male or female." Among other things, its policies state that once a
transgender employee has begun living and working full-time in the gender that
reflects his or her gender identity, agencies should allow access to restrooms
and (if provided to other employees) locker room facilities consistent with his
or her gender identity.
Congress has considered this issue
in the past but has never amended Title VII to include coverage for
transgenders. In contrast, Congress
amended Title VII in 1978 to make it clear that sex discrimination covers
discrimination on the basis of pregnancy, childbirth, or related medical
conditions.
The U.S. Equal Employment
Opportunity Commission and a number of courts have concluded that protection
for transgenders is included in the Title VII prohibition of discrimination on
the basis of sex, but the issue has not yet reached the U.S. Supreme Court. Many courts have recognized
that gender identity discrimination claims may be established under a
"sex-stereotyping" theory. In 1989, in the case of Price Waterhouse v. Hopkins, the Supreme
Court interpreted Title VII's
prohibition of discrimination because of "sex" as barring
discrimination based on a perceived failure to conform to socially constructed
characteristics of males and females. But it did not rule that transgenders
were covered by Title VII.
Eighteen states (not including
Florida) and the District of Columbia have state employment non-discrimination
laws that cover transgenders with protections based on sexual orientation and
gender identity. Many municipalities across the nation also protect
transgenders against discrimination, including Miami-Dade County.
"The decision by Attorney
General Holder will go a long way toward advancing equality for the transgender
community," said Sarah Warbelow, legal director for the Human Rights
Campaign of Washington, D.C., which promotes civil rights for lesbian, gay,
bisexual, and transgender Americans. "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."
In contrast, Peter Sprigg, senior
director for policy studies of the conservative Family Research Council in
Washington, D.C., criticized Holder, saying that the original intent
of the 1964 Civil Rights Act most certainly did not cover transgendered people.
“Probably not one person thought they were passing a bill to protect men who
wanted to become women or women who wanted to become men,” Sprigg said. “This is another example of the Obama
administration circumventing the role of Congress in imposing its own radical
re-interpretation of the law.”
In a two-page internal Justice
Department memorandum outlining his new interpretation of Title VII, dated
December 15, Holder acknowledged that a number of courts have reached varying
conclusions about whether discrimination based on gender identity in and of
itself—including transgender status—constitutes discrimination based on sex.
The memorandum is available online at:
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