The Trump administration’s attempts to dismantle President Obama’s civil rights legacy and case law marched forward this week with a two-page Justice Department memo from Attorney General Jeff Sessions which stated that the Civil Rights Act of 1964 should be interpreted in such a way that does not include transgender people.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Under the Obama administration and its Attorney General Eric J. Holder, “sex” was defined so as to encompass gender identity, which extended civil rights protections to transgender people.
AG Sessions’s memo is an explicit revocation of the Obama administration’s definition of “sex.” Instead, Sessions says sex is to be construed as “biologically male or female,” and as such, the Civil Rights Act does not ban “discrimination based on gender identity per se, including transgender status.”
The memo is essentially a directive to be applied by government attorneys in cases moving forward. Before today, under former Attorney General Holder’s approach, the Justice Department would advocate for and support transgender plaintiffs who invoked the Civil Rights Act in workplace discrimination claims.
Now, that’s over.
The definition of the word “sex” remains the legal hot potato here. Until the Supreme Court explicitly rules on whether “sex” protections extend to transgender people, the government’s approach will be defined by whatever Attorney General happens to be in office. The closest the Supreme Court has come to defining “sex” for these purposes was in the 1989 case Price Waterhouse v. Hopkins, in which “sex” extended to include people who didn’t meet traditional gender norms — which is to say, people who aren’t particularly womanly are still protected, but this is not the same as those who have undergone transgender identity changes.
After this change in interpretation of Title VII, the LGBTQ community has no federal laws protecting them from being fired for their gender identity.