US Attorney General Eric Holder stated in a legal memo that the DOJ will now take the position that Title VII, the federal law that bans employment discrimination based on sex, encompasses discrimination based on gender identity including transgender status.
The announcement came quietly, in a two-page legal memo filled with legal terminology and case citations. But make no mistake – although the format of the announcement may not seem momentous, the substance certainly was.
Transgender people face discrimination at disproportionate levels, particularly in employment and health care. According to one survey, about 90 percent of transgender individuals report experiencing harassment or discrimination in their workplace, up to and including termination. And transgender individuals experience unemployment at twice the rate of other Americans.
In recent years, courts have divided over whether the federal law’s ban on “sex” discrimination includes discrimination based on transgender status. But the DOJ memo makes a strong, clear statement in favor of protecting transgender employees, stating that from now on, the Department “will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se.”
The DOJ’s statement does have important limitations. The DOJ only has authority to file discrimination suits against public entities, not private companies. However, even though the DOJ’s shift in position does not automatically apply to private employers, it may well have an influence in those settings as well. The Department’s legal stand makes it clear where the federal civil rights division stands on this issue, and may well encourage courts to read the Title VII protections broadly in favor of transgender protection, even in private employment cases.
The DOJ’s new stance also places it more in line with our law here in Maine. Maine’s anti-discrimination law, the Maine Human Rights Act, for years has explicitly prohibited discrimination based on gender identity, including transgender status. In a landmark case last year, Maine’s high court became the first in the country to hold that transgender students have the right to use the bathroom of the gender they identify with, not the bathroom corresponding to the sex they were assigned at birth. The girl at the heart of the case, Nicole Maines, made headlines again last month when she was named one of Glamour magazine’s “50 Phenomenal Women of the Year Who Are Making a Difference.”
The DOJ’s recent announcement will not put an end to the debate over whether anti-discrimination law protects transgender employees. But we can hope, as Attorney General Holder stated in his memo, that this announcement will further the “Department’s commitment to fair and impartial justice for all Americans.”