The United States Justice Department (DOJ) recently announced that it will interpret Title VII of the Civil Rights Act of 1964 as protecting transgender employees from discrimination in the workplace. In a December 15, 2014 memo to U.S. Attorneys, Attorney General Eric Holder stated that he has “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 memo acknowledges that this interpretation constitutes an evolution of the DOJ’s thinking on the issue; as recently as 2006 the DOJ defended the Library of Congress’ decision to refuse to hire the most qualified candidate for a position upon learning that she was transgender. This interpretation should influence all actions taken by the DOJ, both through its U.S. Attorneys, who defend the United States when it is a party in civil suits, and through its Employment Litigation Section which enforces Title VII against state and local governments.
The DOJ’s new Title VII interpretation brings it in line with various other federal entities’ recent interpretations of federal anti-discrimination law. In 2011 the Office of Personnel Management issued a notice stating that the government’s policy of non-discrimination on the basis of sex in the federal workplace includes non-discrimination based on gender identity. In 2012 the Equal Employment Opportunity Commission (EEOC) held that discrimination on the basis of gender identity is a form of discrimination on the basis of sex. Most recently, in July of 2014 President Obama issued an executive order stating that discrimination based on gender identity is prohibited for purposes of federal employment and government contracting. Previously the Department of Education and the Department of Justice had already determined that Title IX, the federal law that prohibits discrimination on the basis of sex in education, applies to gender identity claims brought by students.