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Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of Civil Rights Act of 1964

October 4, 2017 MEMORANDUM TO: UNITED STATES ATTORNEYS, HEADS OF DEPARTMENT COMPONENTS, FROM: THE ATTORNEY GENERAL [Sessions]: “Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s…sex.” 42 U.S.C. 2000e-2(a) (prohibiting discrimination by private employers and by state and local governments); 42 U.S.C. 2000e-16(a) (providing that personnel actions by federal agencies shall be made free from any discrimination based on . . . sex”). Title prohibition of sex discrimination is a strong and Vital principle that underlies the integrity of our workforce. The question of whether Title prohibition on sex discrimination encompasses discrimination based on gender identity per se, including discrimination against transgender individuals, arises in a variety of contexts. In a December 15, 2014, memorandum, Attorney General Holder concluded that Title VII does encompass such discrimination, based on his View that Title VII prohibits employers from taking into account “sex-based considerations.” Memo. at 2; see also id. at n.l (defining “gender identity” and “trans gender individuals”). Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per This is a conclusion of law, not policy. 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. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress. Title VII expressly prohibits discrimination “because of . . . sex” and several other protected traits, but it does not refer to gender identity. ‘Sex’ is ordinarily deemed to mean biologically male or female. See, Etsittly 12. Utah Transit Auth., 502 F.3d 1215, 1221?22 (10th Cir. 2007); Hively v. Ivy Tech ley. Coll, 853 F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J., dissenting) (citing dictionaries). Congress has confirmed this ordinary meaning by expressly prohibiting, in several other statutes, “gender identity” discrimination, which Congress lists in addition to, rather than within, prohibitions on discrimination based on “sex” or “gender.” See, 18 U.S.C. 249(a)(2); 42 U.S.C. 13925(b)(13)(A). Furthermore, the Supreme Court has explained that “[t]he critical issue, Title text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment [or other employment actions] to which members of the other sex are not exposed.” Oneale v. Sundowner Offshore Sewn, Inc., 523 US. 75, 80 (1998). Although Title VII bars “sex stereotypes” insofar as that particular sort of “sex-based consideration” causes disparate treatment of men and women, Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 251 (1989) (plurality Title VII is not properly construed to proscribe employment practices (such as sex specific bathrooms) that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex, see, Jespersen v. Harrah’s Operating Inc, 444 F.3d 1104, 1109-10 (9th Cir. 2006) (en bane). Title 3 prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per 56, including transgender status. Therefore, as of the date of this memorandum, which hereby withdraws the December 15, 2014, memorandum, the Department of Justice will take that position in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review)…”

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