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“Transgender Need Not Apply”

November 12, 2017

‘TRANSGENDER NEED NOT APPLY’[1]: HOW THE SESSIONS MEMO THREATENS ESSENTIAL WORKPLACE PROTECTIONS FOR TRANSGENDER INDIVIDUALS

By: Libby Bulinski, Volume 102 Staff Member

On October 4th, 2017, U.S. Attorney General Jeff Sessions issued a memorandum stating that Title VII of the 1964 Civil Rights Act does not prohibit discrimination based on gender identity in the workplace.[2] The memo revoked the employment protections ordered in December 2014 by former Attorney General Eric H. Holder, Jr. that defined discrimination based on gender identity as a form of sex discrimination.[3] In his memo, Holder stated “the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status,”[4] noting his decision was derived from Title VII’s plain language, Supreme Court precedent, and emerging jurisprudence on the subject.[5]

The Sessions memo reversed this course. The memo marks a notable shift in workplace protections for LGBTQ people, especially transgender individuals. At the very least, the Sessions memo aims to strip away at important Obama-era policies tailored to protect the LGBTQ community from gender identity-based discrimination in the workplace.

I. TITLE VII: WHAT IS SEX?

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the employment context “because of such individual’s . . . sex.”[6] For years, courts defined ‘sex’ narrowly, often constricting the definition to solely constitute one’s birth-assigned sex.[7] However, the Supreme Court’s decision in Price Waterhouse v. Hopkins[8] altered the lens through which courts define ‘sex’ for Title VII purposes. In its Price Waterhouse decision, the Court held that discrimination based on an employee’s failure to conform to traditional gender stereotypes amounts to sex discrimination when “[the individual’s] gender played a motivating part in an employment decision” and the employer is unable to prove “by a preponderance of the evidence that it would have made the same decision even if it had not taken the [individual’s] gender into account.”[9]

In the subsequent years following the Price Waterhouse decision, courts have found Title VII’s prohibition on sex discrimination to include “discrimination based on a perceived failure to conform to socially construed characteristics of males and females.”[10] As such, the lens broadened from exclusively including birth-assigned sex to include an individual’s nonconformity with stereotypes typically assigned via the gender binary system.[11]

II. LANGUAGE OF THE OCTOBER 2017 & DECEMBER 2014 MEMOS

Both the Holder and Sessions memos discuss the definition of ‘sex,’ Supreme Court precedent, and statutory interpretation. While the memos present differing analyses on those topics, it is important to discuss their differences in recognition that the Supreme Court may soon address this issue. Accordingly, this section will discuss the three discussion points above. The next section will discuss the Session memo’s impact moving forward.

In his memo, Sessions explained the Title VII protections as prohibiting discrimination based on sex, while noting courts have defined ‘sex’ to “mean biologically male or female.”[12] In contrast, the Holder memo found the most “straightforward reading of Title VII” to be “that discrimination ‘because of . . . sex’ includes discrimination because an employee’s gender identification is a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”[13] Importantly, the Sessions memo made no reference to gender. In fact, Sessions did not state whether gender identity-based discrimination is never actionable under Title VII. By leaving this stone unturned, the Sessions memo does not overtly preclude such a claim under Title VII, though preclusion may be the memo’s goal.

Like the Holder memo,[14] the Sessions memo recognized Price Waterhouse’s bar on discrimination based on “sex stereotyping”[15] but went on to highlight the per se reasoning of its argument.[16] Sessions stated that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”[17] To advance his per se argument, Sessions noted, “Title VII is not properly construed to proscribe employment practices (such as sex-specific bathrooms) that take account of the sex of the employees but do not impose different burdens on similarly situated members of each sex.”[18] The Sessions memo stressed that Title VII does not proscribe employment practices which take sex into account but do not impose varying burdens on similarly situated members of the same sex.[19] Simply put, the memo would not allow employers to discriminate against transgender employees because of their gender nonconformity, but would allow employers to discriminate against transgender employees because of their transgender status.

Last, the Holder and Sessions memos both discuss Title VII’s language and plain meaning. In 2014, Holder stated that the Department of Justice (DOJ) would interpret the plain meaning of Title VII’s prohibition against sex discrimination to “encompass[] discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether.”[20] Holder based this on the Court’s explanation in Price Waterhouse, finding that Congress, by using the words “because of . . . sex” meant to require a “Title VII plaintiff to prove only ‘that the employer relied upon sex-based considerations in coming to its decision.”[21] But in his memo, Sessions noted that Congress has confirmed the narrow interpretation of ‘sex’ to only include birth-assigned sex “by expressly prohibiting, in several other statutes, ‘gender identity’ discrimination, which Congress lists in addition to, rather than within, prohibitions on discrimination based on ‘sex’ or ‘gender.’”[22] The Holder and Sessions memos differ significantly in their analyses of the definition of ‘sex,’ Supreme Court precedent, and statutory interpretation. The Sessions memo marks a course reversal that will threaten workplace protections for the LGTBQ community moving forward.

III. THE FUTURE

Upon learning of Sessions’s memo on October 4, 2017, Vanita Gupta, the head of the Civil Rights Division under the Obama administration, noted that “[the memo] is the latest example of how the Trump administration and the Sessions Justice Department are undermining equal rights and dignity for lesbian, gay, bisexual, and transgender individuals.”[23] The Sessions memo leaves many in the LGBTQ community without protections. However, after the memo, the breadth of gender protection under Title VII is likely to be brought to the Supreme Court due to several factors. First, the Supreme Court has not yet resolved this issue. Additionally, there is a current circuit split regarding whether sex discrimination under Title VII includes discrimination on the basis of sex stereotyping and gender identity.[24] Last, the Sessions memo states the DOJ will take the Sessions position “in all pending and future matters,”[25] which will have wide-reaching effects on pending and prospective cases. As such, the Supreme Court will likely take up the issue this very soon.

The Sessions memo also creates divisions within other federal agencies. The memo is in stark contrast with the Equal Employment Opportunity Commission’s current position on gender stereotyping in the workplace.[26] That position recognizes discrimination perpetrated on the basis of gender identity as a violation of federal law under Title VII.[27] Gender identity in the EEOC context includes transgender status and sexual orientation.[28] The EEOC, which is responsible for enforcing civil rights law for private employers, maintains the position of the Holder memo. The Sessions memo could create a stand-off between the two, as the EEOC might advocate for a transgender individual while the DOJ argues against them.

IV. CONCLUSION

The Sessions memo states that the DOJ “must and will continue to affirm the dignity of all people, including transgender individuals.”[29] But by reversing the policies set forth by former Attorney General Eric Holder, Sessions limits Title VII’s prohibition on sex discrimination by excluding discrimination based on gender identity. The LGBTQ community, and transgender individuals in particular, are at risk for employment discrimination. A survey conducted in 2015 found that 27 percent of transgender individuals “who held or applied for a job that year—19% of all respondents—reported being fired, denied a promotion, or not being hired for a job they applied for because of their gender identity or expression.”[30] This course reversal will leave many individuals in the LGBTQ community without the necessary workplace protections vital to shield them from discrimination by private employers and state and local governments. There is great need for the Title VII protections for gender identity. The Supreme Court should address this issue and uphold the Holder memo position and Title VII protections for gender identity.

  1. Mara Keisling, Executive Director of the National Center for Transgender Equality, described the Sessions memo as according employers the freedom “to hang a ‘Transgender Need Not Apply’ sign in their window[s].” Julie Moreau, Federal Civil Rights Law Doesn’t Protect Transgender Workers, Justice Department Says, NBC News (Oct. 5, 2017), https://www.nbcnews.com/feature/nbc-out/federal-civil-rights-law-doesn-t-protect-transgender-workers-justice-n808126. ↑
  2. Memorandum from Jefferson Sessions, U.S. Attorney Gen., to U.S. Attorneys & Heads of Dep’t Components 1 (Oct. 4, 2017), https://www.documentcloud.org/documents/4067437-Sessions-memo-reversing-gender-identity-civil.html. ↑
  3. Memorandum from Eric H. Holder, Jr., U.S. Attorney Gen., to U.S. Attorneys & Heads of Dep’t Components 2 (Dec. 15, 2014), https://www.justice.gov/file/188671/download. ↑
  4. Holder, supra note 2, at 2. ↑
  5. Id. ↑
  6. 42 U.S.C. § 2000e-(2)(a) (2012). ↑
  7. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984) (“The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men.”); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007) (“[T]here is nothing in the record to support the conclusion that the plain meaning of “sex” encompasses anything more than male and female. In light of the traditional binary conception of sex, transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual.”). ↑
  8. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion). ↑
  9. Id. at 258; see id. at 251 (“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”) (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978)). ↑
  10. Holder, supra note 2, at 1 (referencing Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Glenn v. Bromby, 663 F.3d 1312 (11th Cir. 2011)). ↑
  11. See Sue Landsittel, Comment, Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII, 104 Nw. U. L. Rev. 1147, 1157 (2010) (“Price Waterhouse thus interprets Title VII to prohibit not only discrimination based on one’s status as a biological male or female, but also discrimination based on one’s nonconformance with stereotypes associated with one’s biological maleness or femaleness.”). ↑
  12. Sessions, supra note 1, at 1. ↑
  13. Holder, supra note 2, at 2. ↑
  14. Id. at 1. ↑
  15. Sessions, supra note 1, at 2. ↑
  16. Id. at 1–2. ↑
  17. Id. at 2. ↑
  18. Id. ↑
  19. Id. ↑
  20. Holder, supra note 2, at 2. ↑
  21. Id. ↑
  22. Sessions, supra note 1, at 1–2. ↑
  23. Sari Horwitz & Spencer Hsu, Sessions Ends Workplace Protections for Transgender People Under Civil Rights Act, Wash. Post (Oct. 5, 2017), https://www.washingtonpost.com/local/ public-safety/trump-administration-asks-court-to-toss-out-challenge-to-military-transgender-ban/2017/10/05/3819aec4-a9d5-11e792d158c702d2d975_story.html?utm_term=.d172838c5dd2. ↑
  24. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 351–52 (7th Cir. 2017) (holding that Title VII does prohibit discrimination based on sex); Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256–57 (11th Cir. 2017) (holding that Title VII does not prohibit discrimination based on sexual orientation). ↑
  25. Sessions, supra note 1, at 2. ↑
  26. See What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, U.S. Equal Emp’t Opportunity Commission, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. ↑
  27. Id. ↑
  28. Id. ↑
  29. Sessions, supra note 1, at 2. ↑
  30. The Report of the 2015 U.S. Transgender Survey, Nat’l Ctr. for Transgender Equal. 10 (Dec. 2016), http://www.transequality.org/sites/default/files/docs/usts/USTS%20Full%20Report%20-%20FINAL%201.6.17.pdf. ↑
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