The Employer's Legal Resource: Transgender Employees Continue to be at the Center of Debate
On October 4, Attorney General Jeff Sessions issued a Memorandum withdrawing the 2014 Memorandum of former Attorney General Eric Holder concerning whether Title VII's prohibition on sex discrimination included a prohibition on discrimination because of a person's transgender status. Attorney General Holder concluded it did. Attorney General Sessions concludes it does not. Interestingly, it is a reminder of the purpose of the three branches of government. Congress as the legislative branch drafts our laws. The Attorney General as part of the executive branch is responsible for enforcing those laws. The judicial branch is responsible for interpreting our laws.
Remembering the purpose of each branch is important. At any time, Congress can clarify whether Title VII prohibits discrimination on the basis of a person's gender identity, transgender status, sexual orientation, etc. Until it does so, members of the executive branch, like the Attorney General, will make decisions as to whether to pursue cases based upon that branch's interpretation of the law. But, ultimately, the law's actual interpretation falls to the judicial branch.
Title VII, as interpreted by the courts, governs all parties subject to it. While the October 4 Memorandum may signal a change in the U.S. Government's position which may trickle down and reflect a change as to the cases brought by the Department of Justice or the Equal Employment Opportunity Commission, it has no effect on the law which continues to be interpreted by the courts. Thus, until such time as the issue is finally resolved by the courts (or until the law is clarified by an amendment passed by Congress), you can expect private litigants will continue to file lawsuits.
As an aside, the Memorandum only concerns Title VII, the federal legislation. Many states and municipalities have enacted laws or ordinances protecting the rights of transgender persons within their jurisdiction to be free from employment discrimination. Employers are required to comply with all laws governing their employees in the jurisdiction in which they work, despite the seemingly cumbersome nature of keeping apprised of so many obligations.
By Kristen L. Brightmire, KBrightmire@dsda.com