Attorney General Jeff Sessions on October 4, 2017 issued a memorandum to all US Attorneys signaling a change in the previously articulated position of the United States Department of Justice (DOJ) on transgender employment discrimination. The memorandum, entitled Revised Treatment of Transgender Employment Discrimination Claims, states that in pending and future cases, the DOJ will take the position that Title VII of the Civil Rights Act of 1964 does not provide protection against discrimination based on gender identity. Sessions concedes that some federal courts have interpreted the law differently, and advises his US Attorneys to preserve the issue for “further review” or appeal.
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The Problem with Pronouns
Earlier this month, the Supreme Court announced that it had decided not to hear the case of Gavin Grimm – the transgender student who sued his school district seeking access to the restroom and locker room facilities that correspond to his gender identity. The Court’s change in course followed the Trump Administration’s rescission of an Obama-era Department of Education policy on the issue of bathroom access. Although Grimm’s suit involves public school students, private employers have been keeping a close eye on the case for any implications it may have on the rights of transgender employees in the workplace. The answer to that question will have to wait.
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The Latest Battle in the “Bathroom Wars”
As we reported in an earlier blog post, employers have been keeping an eye on the ongoing political fights over the rights of transgender persons to use restrooms that correspond to their gender identities.
Yesterday, the Department of Justice (DOJ) and the Department of Education (DOE) issued a joint “Dear Colleague Letter” withdrawing two statements of policy and guidance issued by the Obama Administration relating to transgender students’ access to restroom and locker room facilities. The prior guidance documents took the position that prohibitions on discrimination “on the basis of sex” under federal law governing education (Title IX), also apply to gender identity, and require schools receiving federal funds to allow transgender students to use the facilities that correspond to their gender identities. The new letter from the Trump Administration states that the prior guidance did not contain extensive legal analysis, and did not undergo a formal public comment and review process. The new letter from the DOJ and the DOE also notes that states and local school districts play a primary role in establishing educational policy.
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US Supreme Court Blocks Transgender Bathroom Ruling
On August 3, 2016, the US Supreme Court voted 5-3 to put on hold a lower federal court ruling that a transgender male student be allowed to use the bathroom of his gender identity.
The Virginia student, who was born a girl and