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Friday, 06 October 2017 06:04

Sessions Denies Transgender Workers Protection From Discrimination

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TRequalityAG Sessions removes workplace protections for transgender individiuals. (Photo: Tony Webster)

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Attorney General Jeff Sessions has revoked an Obama Department of Justice policy that prohibited workplace discrimination against transgender individuals. According to BuzzFeed, which broke the story,

US Attorney General Jeff Sessions has reversed a federal government policy that said transgender workers were protected from discrimination under a 1964 civil rights law, according to a memo on Wednesday sent to agency heads and US attorneys.

Sessions' directive, obtained by BuzzFeed News, says, "Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status."

It adds that the government will take this position in pending and future matters, which could have far-reaching implications across the federal government and may result in the Justice Department fighting against transgender workers in court.

"Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se," Sessions writes. "This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress."

Of course, firing, harassing or not hiring a person because they are transgender clearly constitutes sexual discrimination in the workplace. However, Sessions' action is predicated on the notion that Title VII of the 1964 civil rights law exclusively covers cisgender individuals.

Additionally, the Trump administration has asserted that sexual orientation should not be protected under Title VII.

Vice News reported on September 26,

Trump's Justice Department appeared in federal court Tuesday to argue that employers should be able to fire people because they are gay.

In a rare occurrence, all 13 judges of the 2nd Circuit Court of Appeals heard oral arguments in Zarda v. Altitude Express Tuesday. The case originated in 2010 when skydiving instructor Donald Zarda sued his former employer, Altitude Express, alleging he had been fired because of his sexual orientation. [He was gay.] The judges are expected to decide if the Title VII provision of the 1964 Civil Rights Act that protects against discrimination based on gender should also apply to discrimination based on sexual orientation.

Meanwhile, in response to Sessions' latest directive on trans discrimination, Kristen Clarke, President and Executive Director of the Lawyers' Committee for Civil Rights Under Law, commented in a news release,

The text of Title VII, federal case law, and the Equal Employment Opportunity Commission all support interpreting and applying Title VII's prohibition on sex discrimination to cover the stark discrimination faced by transgender individuals.  Transgender individuals are among some of our nation's most vulnerable communities and they experience discrimination in virtually every area of life based on their sex.  Attorney General Sessions' actions today only further reinforce his hostility to civil rights and show that he is determined to roll back the fragile gains that have been made. 

Three months ago Attorney General Sessions convened a summit on hate crimes.  Since that convening he has done nothing to activate the Civil Rights Division or protect vulnerable populations including the LGBTQ community.  Senators who care about civil rights must press Attorney General Sessions on this issue when he appears before the Senate Judiciary Committee in two weeks.

Ironically, an article in The Atlantic notes that Sessions is claiming to be committed to affirming the "dignity of … transgender individuals":

Sessions's letter states that "the Justice Department must and will continue to affirm the dignity of all people, including transgender individuals." Nothing in the memo should be interpreted as "[condoning] mistreatment on the basis of gender identity," it goes on, and notes that transgender individuals are protected under federal hate-crime statutes.

How exactly is one affirming the "dignity" of an individual by allowing them to be fired and discriminated against because of their gender identity?

The Atlantic article states,

Sessions stated in his memo that the change is "a conclusion of law, not policy," arguing that his is simply the straightforward interpretation of the statute.

The National Center for Transgender Equality and other advocacy groups, on the other hand, claim the opposite: Theirs is the correct interpretation of the law. "According to Sessions, an employer is free to hang a 'Transgender Need Not Apply' sign in their window," wrote the executive director, Mara Keisling, in an emailed statement. "Fortunately, he is dead wrong on the law."

Sessions is indeed wrong when it comes to the law -- and when it comes to protecting basic human rights for all Americans.