DOJ Changes Position on Gender Identity, Transgender Bias
December 21, 2014
Attorney General Eric Holder has issued a memorandum directing the Department of Justice to consider claims of gender identity discrimination, including bias claims based on an individual's transgender status, cognizable under Title VII of the Civil Rights Act. Holder writes:
After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII 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. . . . the Department will no longer assert that Title VII's prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).
In a statement, Holder said: "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."
While the Employment Nondiscrimination Act (ENDA) – which would specifically prohibit employment discrimination based on sexual orientation and gender identity – has stalled in Congress, the Administration has taken other measures to combat discrimination on this basis. Two years ago in Macy v. Holder, the Equal Employment Opportunity Commission similarly determined that a woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is viable under Title VII of the Civil Rights Act. More recently, the Office of Federal Contract Compliance Programs issued a rule that prohibits LGBT discrimination in government contracting. Whether the 114th Congress takes up the ENDA remains to be seen.