WASHINGTON — Attorney General Jeff Sessions on Thursday ordered the Justice Department to take the position in court cases that transgender people are not protected by a civil rights law that bans workplace discrimination based on sex. The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.
The dispute centers on how to interpret employment protections based on “sex” in Title VII of the Civil Rights Act of 1964. In December 2014, the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view “sex” as encompassing gender identity, extending protections to transgender people.
But in a two-page memo to all United States attorneys and other top officials, Mr. Sessions revoked Mr. Holder’s directive. The word “sex” in the statute, Mr. Sessions said, means only “biologically male or female,” so the Civil Rights Act does not ban “discrimination based on gender identity per se, including transgender status.”
He added that the department “will take that position in all pending and future matters,” except in cases in which a controlling lower-court precedent dictated otherwise, in which case it would reserve the option to revisit the issue on appeal.
The policy change comes as the Justice Department is trying to get out of an employment discrimination lawsuit in Oklahoma that it filed alongside a transgender plaintiff, noted David Lopez, a former general counsel to the Equal Employment Opportunity Commission. A judge appointed by President George W. Bush had previously ruled in that lawsuit that the Civil Rights Act does cover gender identity, agreeing with the department’s Obama-era interpretation.
