Trump Department of Justice Reverses Position on Trans Rights

On October 25, 2018, the Department of Justice (“DOJ”), arguing on behalf of the Equal Employment Opportunity Commission (“EEOC”), contradicted the EEOC’s prior position regarding the rights of transgender employees under Title VII of the Civil Rights Act of 1964.  In a brief submitted to the United States Supreme Court, the DOJ argued that federal law does not prohibit businesses from discriminating against employees on the basis of their gender identity.  The brief echoes an October 4, 2017 memorandum by Attorney General Jeff Sessions on the DOJ’s position since President Donald J. Trump took office, a notable reversal of the agency’s position under President Barack Obama and Attorney General Eric Holder.

In the wake of the DOJ’s brief and Attorney General Sessions’s memorandum, workers should be aware that neither document has the effect of unilaterally changing court precedent.  For example, the United States Court of Appeals for the Sixth Circuit ruled, in EEOC v. R.G. & G.R. Harris Funeral Homes Inc., No. 16-cv-2424 (6th Cir. March 7, 2018), that discrimination based on gender identity is prohibited under Title VII and that decision remains good law unless the Supreme Court grants certiorari and reverses the Sixth Circuit’s decision.  Indeed, businesses in Michigan, Ohio, Tennessee, and Kentucky are restricted under federal law from discriminating against workers on the basis of an employee’s transgender and transitioning status.

Additionally, many states and cities across the country have enacted laws that protect against discrimination in the work place.  In particular, New Yorkers enjoy robust protections against discrimination under the New York State Human Rights Law and the New York City Human Rights Law, both of which prohibit employers from discriminating against individuals on the basis of an employee’s gender identity.  Workers that believe that they are facing discrimination in the work place should turn to state and local laws as well as federal laws for protections of their rights.