In a memo dated December 15, 2014 from United States Attorney General Eric Holder to United States Attorneys and other officials, the Attorney General has declared that Title VII of the Civil Rights Act of 1964‘s prohibition of sex discrimination encompasses discrimination based on gender identity, including transgender status.
The Attorney General wrote,
“The most straightforward reading of Title VII is that discrimination ‘because of . . . sex’ includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”
The memo comes after Congress failed to pass the Employment Non-Discrimination Act, which would provide a Title VII-equivalent prohibition on discrimination based on sexual orientation and/or gender identity. While the memo shows the federal government playing catchup with many courts’ interpretation (The Justice Department previously declared that Title VII per se didn’t prohibit discrimination based on gender identity), it is a sign of hope for those who have been discriminated against in the workplace based on their gender identification.
However, because courts have widely found that Title VII does not prohibit discrimination based on sexual orientation, it may take passage of the Employment Non-Discrimination Act to protect gay and lesbian individuals from discrimination at work that is not based on sex stereotyping.
Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.