Today, in a memo to all U.S. Attorneys and heads and federal agencies, Attorney General Jeff Sessions stated that Title VII of the Civil Rights Act of 1964, as a matter of law, does not prohibit employment discrimination against transgender persons. The Attorney General stated in his letter that there was no intent or effect of diminishing the prohibition against sex discrimination for all persons (and characterizing discrimination against, for example, gay persons, as sex discrimination based upon sexual “stereotypes” has been a back door, of sorts, to bring sexual orientation within Title VII’s protections). The Department of Justice’s new position, which is an about-face from the position staked out by former Attorney General Eric Holder during the Obama Administration, sets up a conflict with the Equal Employment Opportunity Commission, which has taken the opposite position and is enforcing Title VII, within its jurisdiction, as providing such protections. Sessions’ letter is, of course, not a court decision and sets no legal precedent, but it does set the policy of the Department of Justice and other federal agencies.
There is, however, a federal Court of Appeal (the 7th Circuit) that may very well decide, for the first time, that Title VII does indeed, by its prohibition of discrimination based upon “sex,” also prohibit discrimination on the basis of sexual orientation: on September 23, that Court heard oral argument in the case of Zarda v. Altitude Express, a case brought by the estate of Donald Zarda, a deceased gay skydiving instructor who alleged he was terminated from his job because of sexual orientation. Whatever the decision is, it is near certain that the losing side will petition for review before the Supreme Court. Stay tuned.
Stephen Hirschfeld is a founding partner and co-managing partner with the law firm of Hirschfeld Kraemer LLP, in San Francisco, California. He is also the Chief Executive Officer of the Employment Law Alliance (ELA), the world’s largest network of labor and employment lawyers. His practice involves labor, employment and higher education law on behalf of management in both the private and public sector. His clients range from Fortune 500 companies to small, privately-owned businesses.