Attorney General Jeff Sessions has reversed an Obama-era Justice Department policy protecting transgender Americans from discrimination in the workplace.
In a memo to U.S. attorneys obtained by BuzzFeed on Wednesday, Sessions stipulated that the Justice Department will no longer interpret Title VII of the Civil Rights Act to mean that the law’s protections extend to discrimination based on gender identity.
“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,” Sessions wrote in the memo.
It adds that the Justice Department will take this position in pending and future matters and that it is the responsibility of the government to interpret the law “as written by Congress” and that the existing text does not explicitly prohibit discrimination based on gender identity.
“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” Sessions writes. “This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.”
But Sharon McGowan, a former lawyer in the Justice Department’s Civil Rights Division and now an attorney for the LGBT group Lambda Legal, argued that Sessions is ignoring a widespread trend in federal courts.
“It’s ironic for them to say this is law, and not policy,” McGowan told BuzzFeed News. “The memo is devoid of discussion of the way case law has been developing in this area for the last few years. It demonstrates that this memo is not actually a reflection of the law as it is — it’s a reflection of what the DOJ wishes the law were.”
“The sessions DOJ is trying to roll back the clock and pretend that the progress of the last decade hasnt’ happened,” she added. “The Justice Department is actually getting back in the business of making anti-transgender law in court.”
Devin O’Malley, a Justice Department spokesperson, told BuzzFeed that the decision was made in order to align the Justice Department with the law as written by Congress.
“The Department of Justice cannot expand the law beyond what Congress has provided. Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action,” O’Malley said.
“This Department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation.”
The American Civil Liberties Union (ACLU) on Thursday slammed the apparent decision.
“Today marks another low point for a Department of Justice, which has been cruelly consistent in its hostility towards the LGBT community and in particular its inability to treat transgender people with basic dignity and respect,” James Esseks, director of the ACLU’s LGBT & HIV Project, said in a statement.
“Discrimination against transgender people is sex discrimination, just as DOJ recognized years ago. We are confident that the courts will continue to agree and will reject the politically driven decision by Attorney General Sessions,” Esseks said.