AG Sessions rolls back Obama-era civil rights protections for transgenders
Attorney General Jeff Sessions sent a memo to federal prosecutors informing them that the Obama-era guidelines on giving employment protection to transgendered people under the Civil Rights Act will no longer apply. Sessions said the Obama administration interpretation went beyond the scope of the law to include transgendered people with minorities, women, and other protected groups.
"Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status," Mr. Sessions wrote.
He rolled back a 2014 policy by then-Attorney General Eric H. Holder Jr., who said Title VII prohibited employers from making "sex-based considerations" based on gender identity or a person's identification as transgender.
The decision roiled civil rights activists, who saw the memo as a direct attack on transgender individuals.
James Esseks, director of the American Civil Liberties Union's LGBT and HIV Project, called it "another low point."
"This Department of Justice under Jeff Sessions has time and time again made it clear that its explicit agenda is to attack and undermine the civil rights of our most vulnerable communities, rather than standing up for them as they should be doing," he said.
Mr. Sessions' policy "flies in the face of case law that has reached the opposite conclusion," said Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights and the former head of the DOJ's Civil Rights Division.
LGBT rights group Freedom for All Americans pointed to cases it said established a precedent for extending Title VII protections to gender identity – including the Supreme Court's 1989 ruling in the Price Waterhouse v. Hopkins case that found that sex discrimination includes sex stereotyping.
The 6th U.S. Circuit Court of Appeals has twice ruled that gender identity is protected from discrimination under Title VII, while the 7th Circuit ruled this year that Title VII protects gay workers from discrimination based on sexual orientation.
The 11th Circuit has ruled in favor of a transgender woman who was fired because she intended to transition from male to female, though the complaint in that case was brought under the Equal Protection Clause and not Title VII. The 11th Circuit has rejected gender identity as a basis for a Civil Rights Act claim, and other courts have also ruled that way.
What exactly is Session saying here? The bottom line is that the Obama administration had no constitutional right to expand the definitions under Title VII without the consent of Congress.
"The Department of Justice cannot expand the law beyond what Congress has provided," said DOJ spokesman Devin O'Malley. "Unfortunately, the last administration abandoned that fundamental principle, which necessitated today's action."
Mr. Sessions' memo goes on to say that it should not "be construed to condone mistreatment on the basis or gender identity, or to express a policy view on whether Congress should amend Title VII or provide different or additional protection."
"The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals," he wrote.
House Minority Leader Nancy Pelosi, California Democrat, said Congress should step in and clear the issue up by passing the Equality Act, which would add sexual orientation and gender identity protections to Title VII.
The "stroke of a pen" argument is inherently weak. If Congress wants to amend the Civil Rights Act to include "gender identity," that is the best way to go about doing it.
But activists don't want to go through Congress because they will fail. More importantly, taking the issue to Congress will spark a debate on the issue of transgenderism, and the last thing transgender activists want is to have to justify to the American people why someone making a personal choice about his gender should be granted the same protections given to blacks, women, and others who are born a minority or female.
Obviously, as with all other issues in the culture war, this one will almost certainly end up in the Supreme Court. There, it faces an uncertain future, as the current make up of the court is predisposed to expand the definition of civil rights wherever possible. So in the end, the activists may well get their way – and America will be poorer for it.