Transgender Protection under Title VII Announced

December 29, 2014

Attorney General Eric Holder announced last week that it is the position of the U.S. Department of Justice that discrimination against transgender people is prohibited under Title VII of the Civil Rights Act of 1964.

The announcement, made Thursday via a memorandum sent to all department heads and U.S. attorneys, reflects a reversal of the department's prior position that the federal civil rights law's prohibition on sex discrimination did not cover claims of discrimination against transgender people.

"This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status," Holder said in a statement. "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."

The circulated memo makes clear that "sex" under Title VII includes discrimination based on transgender status, including discrimination "because an employee's gender identification is of a particular sex, or because the employee is transitioning, or has transitioned to another sex." The memo concludes that "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)."

The memo follows a series of recent administrative actions embracing transgender rights and holding that discrimination based on transgender status is prohibited. In 2011, the U.S. Office of Personnel Management issued guidance affirming the rights of transgender employees in the federal workforce. President Obama in June of 2014 issued an executive order that prohibited discrimination based on gender identity and sexual orientation in federal employment and government contracting. The Department of Labor released regulations to enforce that order last week. The final rule will become effective 120 days after its publication in the Federal Register. Eighteen states, the District of Columbia and many other businesses already offer workplace protections to lesbian, gay, bisexual and transgender employees and this executive order was the first federal action to ensure LGBT workplace equality in the private sector.

If you should have questions about this announcement and the potential implications for your company, please contact SESCO.