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.
Whether these agencies’ recent actions will have an effect in the judicial interpretation of Title VII remains to be seen. In September the EEOC filed its first two lawsuits ever asserting that Title VII prohibits discrimination against transgender workers. In EEOC v. R.G. & G.R. Funeral Homes, Inc. the EEOC alleges that a Michigan funeral home violated Title VII when it fired one of its employees after she told them she was transgender and began dressing in traditionally female clothing, thus (in the funeral home’s view), violating its sex-specific dress code. In EEOC v. Lakeland Eye Clinic the EEOC alleges that a Florida eye clinic began to discriminate against one of their employees after she came out as transgender and began dressing in traditionally female clothing, then fired her and replaced her with a man. Both of these cases are likely to raise the question of how to interpret the fact that Congress has, for twenty years, failed to pass the Employment Non-Discrimination Act (ENDA), a law that would explicitly add “sexual orientation” and “gender identity” as protected categories under Title VII. Those who believe Title VII protects against gender identity discrimination argue that ENDA has failed in Congress because Title VII’s prohibition on sex discrimination already covers gender identity; those who disagree that Title VII should extend to gender identity claims point to ENDA’s failure to pass as evidence that Congress does not believe or want Title VII to cover such claims. In the Michigan case the funeral home has moved to dismiss the complaint, arguing that Title VII’s prohibition on sex discrimination does not apply to gender identity claims, and that Congress’ failure to pass ENDA and previous federal court decisions support that interpretation. Whether the courts in these cases will agree with the position put forth by the defendants or the position taken by the EEOC, Department of Justice, Department of Education, and President Obama remains to be seen. While the federal government’s continued expansion of protection from gender identity discrimination is a positive step, it is important to recognize the limitations of these recent developments, which are primarily limited to a subset of employment discrimination claims, and which the federal courts may limit when they decide whether Title VII protects against gender identity discrimination.