Department of Injustice: Understanding the Latest Trump Administration Attacks
by Harper Jean Tobin
Last week, the Trump administration attacked trans people again, this time with a one-two punch:
- On Wednesday, Attorney General Jeff Sessions issued a memo stating that the federal Civil Rights Act does not prohibit workplace discrimination against transgender people.
- On Friday, Attorney General Sessions issued another memo stating that — even where federal laws do apply — businesses and individuals can claim a wide-ranging license to discriminate in the name of religion.
Trans people still have equal rights under federal law — but the Department of Justice is encouraging employers, health care providers, and just about anyone else to ignore the law and discriminate anyway.
Sessions memo revives a losing position
Workplace discrimination laws are primarily enforced by the U.S. Equal Employment Opportunity Commission, an independent body that — for now — maintains the view that trans people are protected. In fact, in just the last two weeks, the EEOC has successfully settled one suit on behalf of a trans worker and filed another new one.
The main reason the Department of Justice needs a position on Title VII of the 1964 Civil Rights Act is that it defends the federal government against workplace lawsuits. For years, DOJ maintained the position that anti-transgender discrimination has nothing to do with gender.
Following Attorney General Holder’s memo, the DOJ filed several briefs on behalf of transgender workers in private cases.
It proved to be a losing position for the government as far back as 2008, when D.C.’s federal district court ordered a half-million dollar judgment against the government for withdrawing a job offer to a transgender woman. In 2012, a nearly identical case involving a withdrawn offer to work for the DOJ itself led the EEOC to rule that anti-transgender bias is “by definition” sex-based and violates federal law.
It was after being on the losing side of Macy v. Holder that former Attorney General Eric Holder decided that the Department should follow the case law. In December 2014, citing cases from three federal appeals courts — as well as the two cases DOJ itself had lost — Holder issued a memo concluding that “the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.”
In the three years since, most courts have continued to follow that view of the law. Following this memo, the DOJ not only stopped making odious arguments in cases by trans federal employees, but it also filed several briefs on behalf of transgender workers in private cases, and even filed a case against a state university who fired a trans woman and a case against North Carolina’s notorious House Bill 2.
Sessions thinks employers can say “No Trans Need Apply”
Now the DOJ has returned to its old, losing legal position. In comparison to the Holder memo, the new Sessions memo on Title VII is light on citations to case law. It cites only one federal court ruling for the proposition that Title VII doesn’t cover anti-trans bias “per se” — and then goes on to cite the dissenting opinion in the recent Seventh Circuit Court of Appeals ruling that stated trans people are protected. That is the memo’s only nod to the more than two dozen court rulings to date that federal sex discrimination laws protect transgender people.
The memo instructs all DOJ attorneys to take the position that trans people are not protected “in all pending and future matters,” or — in the broad swaths of the country where there is binding legal precedent to the contrary — “preserve [the issue] for potential future review.” This opens the door for the DOJ to wade into private disputes specifically to harm transgender workers, as it did in a recent case involving a gay employee.
Get ready for more awkward EEOC vs. DOJ court hearings. In fact, the anti-LGBTQ hate group Alliance Defending Freedom jumped on the Sessions memo immediately, citing it in their case against — who else — the EEOC, involving a transgender woman who was fired as a funeral director.
Sessions signs a license to discriminate
The Discrimination Administration was not content to say that federal laws don’t protect LGBTQ people. Last Friday’s memo on “religious liberty” made clear that to the extent federal laws do prohibit discrimination — against LGBTQ people and potentially anyone else — the Trump DOJ will promote a sweeping license to discriminate.
These are just a few of the 20 principles in the License-to-Discriminate guidance:
- Any law is a burden on religion if someone says it is. For example, in the case mentioned above, ADF is arguing that employing a transgender woman burdened the funeral home owners’ expression of the view that being transgender is wrong and unnatural.
- A law can be ignored in the name of religion even if it means hurting someone else. This means that businesses and individuals can impose their religious views on others, even when it means firing them or denying them housing, health care, or other services.
- Religious employers are entitled to employ only people whose beliefs and conduct are consistent with the employers’ religious precepts. While federal law allows certain religious organizations to hire only members of their own faith or sect, the Sessions memo goes further and would allow them to fire a person for having a same-sex relationship or coming out as transgender.
Wasting no time, the Trump administration immediately put these dangerous principles into action by granting a sweeping exemption allowing both religious employers and for-profit businesses to completely deny birth control coverage to their employees.
The Department of Health and Human Services is gearing up to roll back landmark regulations that recognize nondiscrimination protections for trans people.
Next up: a prescription for discrimination
The two DOJ memos lay the legal foundation for the next attack being prepared against trans people, which also involves denying necessary health care.
The Department of Health and Human Services is gearing up to roll back landmark regulations that recognize nondiscrimination protections for trans people under the Affordable Care Act. That means the Trump administration is not just trying to deny needed medications — it’s also planning to put a seal of approval on denying all kinds of health care, turning trans people away from hospitals and clinics, and subjecting them to dangerous abuse when they’re most in need of help.
The bottom line: you still have rights
No matter what the Trump administration says, discrimination is against the law. That’s what the overwhelming majority of federal courts say. It’s also still the view of the EEOC.
If you’ve faced discrimination on the job or elsewhere, check out NCTE’s Know Your Rights resources or get legal help.
NCTE will keep watching and keep challenging the Trump administration’s efforts to discriminate.
Harper Jean Tobin is Director of Policy at the National Center for Transgender Equality.
Sign up to receive NCTE’s emails, and follow NCTE on Twitter, Facebook, and Medium for the latest news on issues affecting the transgender community. Visit transequality.org for in-depth resources and information on what you can do to support the transgender people in your life.
