In yet another shift from the policies of the Obama Administration, this week the Justice Department announced that it was reversing the Obama Justice Department’s position that private discrimination against transgender Americans was barred under the Civil Rights Act of 1964 and other similar laws:
WASHINGTON — Attorney General Jeff Sessions on Thursday ordered the Justice Department to take the position in court cases that transgender people are not protected by a civil rights law that bans workplace discrimination based on sex. The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.
The dispute centers on how to interpret employment protections based on “sex” in Title VII of the Civil Rights Act of 1964. In December 2014, the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view “sex” as encompassing gender identity, extending protections to transgender people.
But in a two-page memo to all United States attorneys and other top officials, Mr. Sessions revoked Mr. Holder’s directive. The word “sex” in the statute, Mr. Sessions said, means only “biologically male or female,” so the Civil Rights Act does not ban “discrimination based on gender identity per se, including transgender status.”
He added that the department “will take that position in all pending and future matters,” except in cases in which a controlling lower-court precedent dictated otherwise, in which case it would reserve the option to revisit the issue on appeal.
The policy change comes as the Justice Department is trying to get out of an employment discrimination lawsuit in Oklahoma that it filed alongside a transgender plaintiff, noted David Lopez, a former general counsel to the Equal Employment Opportunity Commission. A judge appointed by President George W. Bush had previously ruled in that lawsuit that the Civil Rights Act does cover gender identity, agreeing with the department’s Obama-era interpretation.
Federal appeals courts have reached varying views on whether the Civil Rights Act’s ban on sex discrimination extends to gender identity, but five circuits have ruled that it does, said James D. Esseks, the director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & HIV Project.
Mr. Sessions’s move means the Justice Department will no longer side with transgender plaintiffs in workplace discrimination lawsuits invoking the Civil Rights Act. It will either stay on the sidelines or tell courts that the law should not be interpreted as banning discrimination by the employers.
That position is not just a reversal from the Obama-era stance, but it would also put the Justice Department at odds with the view of the Equal Employment Opportunity Commission, another part of the federal government that deals with discrimination in the workplace.
“Jeff Sessions’s D.O.J. has made it its mission to oppose, rather than enforce, civil rights law,” said Sharon McGowan, a former Justice Department civil rights lawyer who is the director of strategy for Lambda Legal, which advocates civil rights for lesbian, gay, bisexual and transgender people. “But no matter how many memos he issues, the law is on our side. And so are the courts increasingly.”
Mr. Sessions’s move came three months after the Justice Department, without being asked for its opinion, filed a brief before an appellate court in a private workplace discrimination lawsuit, taking the position that the Civil Rights Act’s ban on sex bias does not cover sexual orientation.
While that move was also greeted with dismay by civil rights advocates, it was less of a reversal than Mr. Sessions’s memo on Thursday, because the Obama administration never took the position that the bar to “sex” discrimination should be interpreted as extending to sexual orientation. Instead, it tried to avoid the question, while welcoming the prospect that the law might “continue to evolve” in that area.
The Supreme Court has not resolved the question of whether “sex” can mean sexual orientation or gender identity. But in a 1989 case, Price Waterhouse v. Hopkins, the Supreme Court ruled that the ban on “sex” discrimination does encompass discrimination against people who fail to conform to gender stereotypes. That case involved a woman who was deemed insufficiently feminine, not a transgender person.
Mr. Sessions’s policy directive was the latest in a series of steps the Justice Department has taken since he became attorney general to curtail the reach of civil rights laws. On his watch, the Civil Rights Division has also changed its position on whether Texas’ strict voter identification law was discriminatory, pulled back from using consent decrees to reform troubled police departments, and began a project to scrutinize affirmative action practices in university admissions.
This isn’t the first time that the Trump Administration has reversed the legal interpretations of the Obama Administration as it applied to those who identify as transgendered. Early in the Administration, the Justice and Education Departments revoked guidelines that their Obama Era counterparts had issued regarding how schools should handle transgender students and specifically such issues as which bathroom and locker room facilities such students should be permitted to use. In both cases, the position that the Obama Administration took relied on the argument that the provisions of the Civil Rights Act of 1964 and other subsequent legislation which bar discrimination based on “sex” also cover discrimination based on “gender identity.” As Ive noted before, this argument has always seemed to me to be especially weak given the fact that it is clear that the drafters of the Civil Rights Act and the legislation that followed it did not even consider the idea that they were writing a law that would cover a form of discrimination other than what seems to be clearly intended by the statutes themselves, namely discrimination based on the biological gender of the person making the claim. The argument that statues written fifty years ago can or should be reinterpreted to cover something that they clearly were not intended to is a particularly dangerous one, and one that courts ought to avoid. Whether our laws should be expanded to cover other forms of discrimination is, in the end, a legislative determination not one that lawyers or judges should be deciding on their own.
The fact that the Justice Department is changing policies doesn’t mean this argument is over, of course. Private litigants have been using the argument first raised by the Obama Administration in a variety of cases across the country. Most recently, that argument played a role in a ruling by the Seventh Circuit Court of Appeals that held that the Civil Rights Act, as well as Title IX, in favor of a transgender student who was suing his school district for the right to use the boys bathroom at his school. The argument is also being advanced in a number of other lawsuits around the country. Eventually, one or more of these cases will likely make its way to the Supreme Court where it will be decided once and for all. Given the current ideological balance on the Court, the likelihood seems to be that the Court will rule against those seeking to stretch statutory language to cover something it clearly wasn’t intended to cover. The one caveat here would be Justice Kennedy. As I’ve noted in the past, Kennedy has been at the forefront of the Court’s series of opinions that have advanced LGBT rights as far as they’ve come, from the 1996 decision in Roemer v. Evans to the 2015 ruling in Obergefell v. Hodges which found that laws against same-sex marriage violated the Equal Protection Clause of the 14th Amendment. If Kennedy were still on the Court when such a case came before it, he would end up being the deciding Judge on this issue and many might assume that he’d be more inclined to be sympathetic to the argument of transgender Plaintiffs than any of the other Republican-appointed Justices. If, however, Kennedy is retired by the time one of these cases get to the high court and replaced by another conservative Justice then it’s likely that the Justice Department’s position would prevail. All of that is speculation, of course, and much will depend on how lower courts deal with this issue in the coming years. For now, though, this is clearly a setback for those who have been seeking to use existing laws to establish claims on behalf of transgender Plaintiffs.
Update: Here’s the Dept. of Justice memorandum:
Justice Dept. Memo on Transgender Distrcimination by Doug Mataconis on Scribd
