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DOJ will act to protect transgender employees from discrimination

By Pamela Wolf, J.D.

The Department of Justice will officially take the position in litigation that Title VII protections extend to claims of discrimination based on an individual’s gender identity, including transgender status, according to a memorandum issued by Attorney General Eric Holder. The memo informs all DOJ component heads and U.S. attorneys that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination—an about-face from the DOJ’s previous position. Announcing the change publicly in a December 18 release, the DOJ noted that Title VII makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s…sex,” among other protected characteristics.

The DOJ’s shift is consistent with the position taken in recent years by the EEOC. In September, the EEOC announced the filing of two lawsuits that were the first ever brought by the agency to challenge sex discrimination based on transgender status. Because the EEOC is not authorized to bring Title VII suits against state and local government employers, it must refer those cases to the DOJ.

“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,” said Holder. “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 DOJ said that the memo is intended to foster consistent treatment of claimants throughout the government and reduce confusion. In addition to applying to the DOJ’s civil obligations in defending federal interests, it also clarifies that the Civil Rights Division is able to file Title VII claims against state and local public employers on behalf of transgender individuals.