AG Says Title VII Does Not Prohibit Transgender Discrimination

The Attorney General of the United States issued a memo on October 4, 2017, that reversed the Obama Administration’s position that Title VII protects transgender individuals.  The memo says: “Title VII does not prohibit discrimination based on gender identity per se.”  And, explains that: “the sole issue addressed in this memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation or employer action.” Based on this conclusion, the memo directs the Department of Justice and federal agencies to follow Title VII as written, i.e., not as interpreted to include protection for transgender individuals.

It is unclear what effect the memo will have on private employers or on the courts.  In Oregon and Washington (as well as in a number of other states), state law prohibits discrimination on the basis of sexual orientation (which includes gender expression and gender identity).  Further, the memo conflicts with the EEOC’s current position regarding protections for transgender employees and the agency’s efforts to pursue claims on behalf of transgender employees.  To date, the EEOC has not commented on the memo (or on whether it intends to curtail its efforts).

We will continue to follow developments on this subject.

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