In a move that seems to reverse progressive steps forward in the rights of the LGBT community, US Attorney General Jeff Sessions rescinded a former Obama administration decree from Dec. 2014 which stated that Title VII of the Civil Rights Act of 1964 prohibited the discrimination of transgender peoples in the workplace.
“Title VII’s prohibition on sex discrimination…does not encompass discrimination based on gender identity per se, including transgender status,” stated Sessions and his team.
The change on Title VII came after President Donald Trump signed a memo directing the Pentagon to ban transgender people from joining the United States military, a policy which will be implemented by Feb. 21, 2018. According to a 2016 RAND study, there are a current estimated 2,150-10,790 active-duty and reserve transgender troops.
Then-Attorney General Eric Holder from Obama’s administration gave guidance on the original decree saying, “Although Congress may not have had such claims in mind when it enacted Title VII (sex discrimination protections), the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.'”
According to CBS News, Sessions’ policy rewrites what constitutes as employment discrimination and goes back to the ideological disagreement over whether gender should be solely determined by one’s birth certificate or if sexual discrimination includes a broader gender identity.
Rob Wilson, employee rights expert and President of Employco USA, gave a bit of peace of mind for those taken back by the change in protection.
“Contrary to frightening headlines on this topic, this decision by Attorney General Jeff Sessions is far from a ‘get out of jail free’ card to start discriminating against transgender employees,” said Wilson in an article with Prime Media Management. “In fact, the law is still largely on the side of transgender employees, thanks to the Equal Employment Opportunity Commission.”
The U.S. Equal Employment Opportunity Commission (EEOC) is a part of the federal government that deals with discrimination in the workplace. The EEOC holds themselves liable for “enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information,” according to the EEOC’s website.
Wilson explained that the decision by Sessions will result in the Department of Justice (DOJ) being unlikely to investigate claims of LGBT discrimination or file charges against discriminators. Employees do not necessarily need the DOJ’s help in order to win a discrimination case and no one could be sure that the DOJ would have assisted in an employee’s claim to begin with.
The Supreme Court has not openly resolved whether “sex” can mean sexual orientation or gender identity but Sessions’ policy directive is the latest in a series of steps limit the reach of civil rights laws.
“It’s striking to see the Justice Department argue again and again to take civil rights protections away from people,” said James D. Esseks, the director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & HIV Project. “When else have they reached out affirmatively, not because they are involved in a case, to say, ‘We think the world is a better place if civil rights laws don’t cover this community?’”