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US Justice Department Reverses Position on Transgender Discrimination

Sessions Rejects Interpretation that Protects Transgender Rights Under US Law

People protest U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, in Times Square, in New York City, New York, U.S., July 26, 2017. © 2017 Reuters

US Attorney General Jeff Sessions issued a directive this week stating that Title VII in the 1964 Civil Rights Act does not prohibit discrimination in the workplace on the basis of gender identity.

The memorandum reverses the position that the Justice Department took in 2014, when then-Attorney General Eric Holder determined that discrimination on the basis of gender identity is a form of sex discrimination. The Equal Employment Opportunity Commission had reached the same conclusion in a landmark ruling in 2012, and multiple federal courts have found that Title VII covers transgender peopleas well.

Sessions’ memorandum is the latest instance where the Justice Department has adopted positions that weaken non-discrimination protections for LGBT people. In February, the department withdrew guidance clarifying that the sex discrimination provisions of Title IX protect transgender students in schools. In July, it filed a brief arguing that Title VII’s prohibition on sex discrimination does not include discrimination on the basis of sexual orientation. And in September, it told the Supreme Court that a baker who declined to create a cake for a same-sex wedding should not have to comply with state non-discrimination laws protecting LGBT people.

These actions give the distinct impression that the Justice Department is uninterested in fighting discrimination against LGBT people. But transgender people in particular face rampant discrimination in the United States, and action to combat workplace discrimination is urgently needed. The National Center for Transgender Equality’s 2015 survey of almost 28,000 transgender people in all fifty states found that the unemployment rate for transgender people was three times higher than the general public. And of those who were employed, 30 percent said they had experienced discrimination or harassment in the workplace in the previous year because of their gender identity.

Title VII has been a lifeline for transgender people fighting back against workplace bias, and the Justice Department has offered no alternatives to combat discrimination and protect LGBT people’s rights. If the Justice Department truly believes that discrimination is wrong and should be confronted, it is running out of time and credibility to prove it.

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