The Trump administration, with Attorney General Jeff Sessions leading the charge, moved on three fronts last week to curtail the rights of LGBTQ Americans, relying in part on contested claims of religious liberty and also bucking an emerging trend in how courts are interpreting sex discrimination provisions of the 1964 Civil Rights Act.
On October 4, Sessions announced that the Justice Department was abandoning a policy approved in 2014 by former Attorney General Eric Holder under which DOJ would interpret the Title VII ban on sex discrimination in employment to protect transgender people. Holder adopted that view several years after the Equal Employment Opportunity Commission (EEOC), the federal agency charged with overseeing Title VII enforcement, came to the same conclusion. Federal courts have increasingly recognized that discrimination based on gender identity is necessarily sex discrimination — and earlier this year, the Chicago-based Seventh Circuit Court of Appeals applied the same logic to Title IX of the Education Amendments of 1972 in ruling that a transgender high school student has the right to access bathroom facilities consistent with his gender identity.
But Sessions does not accept that interpretation of sex discrimination language in federal law.
Attorney general champions “license to discriminate,” takes on transgender equality
“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,” the attorney general wrote in his memo last week.
Transgender rights advocates were quick to challenge Sessions’ conclusion.
“The Sessions memo also ignores the weight of federal court precedents, overwhelmingly finding that transgender people are protected from sex discrimination,” Jillian Weiss, executive director of the Transgender Legal Defense and Education Fund, said in a written statement. “The idea that the federal civil rights law protects people only from discrimination on the basis of biological sex is flatly contradicted by US Supreme Court rulings.”
Weiss pointed to court decisions dating back to 1989, when the Supreme Court held that Price Waterhouse violated a female employee’s rights under Title VII in denying her a partnership because she failed to meet its standards of femininity.
Mara Keisling, who heads the National Center for Transgender Equality (NCTE), issued a release saying, “The Trump/ Pence administration is determined to promote discrimination through a false view of the law that has been rejected again and again by the courts… The Attorney General does not get to make law, but he should at least read it. Simply: he is once again abdicating his responsibilities to enforce the law. Courts have repeatedly ruled that transgender people are protected by sex discrimination laws in employment, education, housing, and healthcare. We’ll see him in court.”
Sessions’ action on transgender employment discrimination comes less than three months after the Justice Department intervened in a federal lawsuit to oppose claims by the estate of a late gay man that Title VII’s sex discrimination provision bars discrimination based on sexual orientation. In that case, the DOJ’s position is at odds with that taken by the EEOC, where appointees of former President Barack Obama continue to hold a majority. The Seventh Circuit, earlier this year, also held that sexual orientation discrimination is necessarily sex discrimination under Title VII.
Early in the Trump administration, Pence and Education Secretary Betsy DeVos reversed a policy under which schools receiving federal money were directed to allow transgender students access to bathrooms consistent with their gender identity. That issue is likely to go before the Supreme Court in its current term.
On October 6, Sessions announced another new policy — this one concerning claims of religious liberty — which has the potential to undo protections across the board for the LGBTQ community and also to undermine women’s reproductive freedom. That memo delivered on President Donald Trump’s longstanding pledge to religious conservatives that he would carve out exemptions from laws and regulations based on an individual’s and even an organization’s religious views. The new directive instructs federal agencies to review existing policies in light of “religious liberty” considerations, and states that exemptions might be appropriate not only for government employees but also private sector individuals, religious organizations, and even some for-profit enterprises.
As did other LGBTQ and civil rights organizations, the Human Rights Campaign immediately branded the religious liberty memo as a “sweeping ‘license to discriminate.’” The group warned that the memo could allow an employee of the Social Security Administration to refuse to process spousal or survivor benefits paperwork in the case of a same-sex married couple, could allow a federal contractor to discriminate against LGBTQ people in providing services, would increase the leeway for religiously-affiliated organizations to refuse employment to LGBTQ people, and could lead to discrimination by adoption and foster care agencies.
When Obama issued his ban on anti-LGBTQ discrimination by contractors doing business with the federal government, advocates cheered that he did not include religious exemptions from his order’s requirements. The Sessions memo, LGBTQ groups warned, threatened to undermine the comprehensiveness of Obama’s executive order.
NCTE’s Keisling, in a written statement, said, “This latest move furthers the Trump/ Pence administration’s mission to divide the nation by granting businesses, hospitals, and schools a nearly unchecked license to discriminate — and the Department of Health and Human Services is currently drafting another regulation to officially endorse discrimination against transgender people by health care providers and insurers.”
On the same day Session issued the religious liberty memo, the Department of Health and Human Services announced that it was weakening the contraception coverage requirements of the Affordable Care Act by allowing both nonprofits and companies to withhold such coverage if they have religious objections.
In a third action last week, the Justice Department urged the US District Court in Washington, DC, to dismiss a challenge to Trump’s planned ban on transgender military service, arguing that the policy has not yet been implemented. Several plaintiffs in that case, however, allege that, despite the Pentagon’s assurances that nothing will change until a new policy is formulated and put in place, medical treatments they had planned to undergo under the Obama administration’s 2016 policy of opening up service to transgender soldiers have now been put on hold.