Attorney General Jeff Sessions issued a memorandum to Department of Justice personnel on October 4, 2017 in which he effectively upended the Department’s treatment of employment discrimination based on gender identity.

As discussed in Session’s memorandum, there is no federal law that expressly prohibits employment discrimination on the basis of an individual’s gender identity, including transgender status. Under the Obama administration, however, Title VII, which prohibits employment discrimination on the basis of an individual’s race, color, religion, sex, or national origin, was interpreted to include discrimination based upon a person’s gender identity.

Attorney General Sessions’ memorandum concludes that the Obama-era interpretation was incorrect as a matter of law. Sessions pointed out that, while Congress has expressly prohibited gender identity in a number of other contexts, it has not expressly prohibited gender identity in the context of employment discrimination. He further suggested that Title VII is not equipped to handle the unique employment issues that could arise with transgendered individuals. For instance, under the revised interpretation, sex specific bathrooms “do not impose different burdens on similar situated members of each sex;” thus, Title VII would proscribe employment practices which limit male or female bathroom access in the workplace. As a result of this change, the Justice Department will not side with individuals in claims brought against employers who allege discrimination based on gender identity under Title VII.

While it is not expected that Congress will enact legislation expressly relating to transgendered employees during the Trump administration, employers should not read this change in policy as permission to discriminate against transgendered employees. The position taken by the Attorney General is at odds with the position of the Equal Employment Opportunity Commission (“EEOC”) and advocacy groups who will be more than happy to litigate the issue. In addition, many state and local laws prohibit employment discrimination on the basis of gender identity.

Attorney General Session’s memorandum is consistent with other Trump administration changes in policy regarding treatment of transgendered individuals, including a change in federal guidelines relating to the rights of transgendered students to use the restroom/locker room that match their gender identities and a ban prohibiting transgendered individuals from serving in the military.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.