Trump Administration Reverses Course on Transgender Discrimination

On October 4, 2017, Attorney General Jeff Sessions issued a memorandum to all U.S. Attorneys, stating that, going forward and contrary to its previous stance, it is the Department of Justice’s position that Title VII’s prohibition on sex discrimination does not encompass discrimination based on gender identity.

In the memorandum, the Attorney General observed that, while Title VII prohibits sex discrimination based on “sex stereotypes,” it does not prohibit gender identity discrimination. This is the position that had historically been taken by the EEOC before its sudden expansion of Title VII under the Obama administration to include both sexual orientation and gender identity discrimination within its ambit.

The Attorney General reiterated that, “The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals.” He also stated that the Department will enforce other federal laws that prohibit gender identity discrimination in certain contexts (not including employment).

This is just the latest example of reversals of Obama-era positions under the Trump administration. As we have previously noted, the DOJ under President Trump has now rejected the National Labor Relations Board’s assertion that arbitration agreements containing waivers of the right to bring class or collective actions violate employee’s rights under Section 7 of the National Labor Relations Act. The DOJ has also recently rejected the Equal Employment Opportunity Commission’s assertion that sexual orientation is covered by Title VII.