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New DOJ Transgender Guidance

New DOJ Transgender Guidance

U.S. Attorney General Jeff Sessions has issued a memorandum to all U.S. Attorneys directing that the Department of Justice's new policy is that Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination based on transgender status.

U.S. Attorney General Jeff Sessions has issued a memorandum to all U.S. Attorneys directing that the Department of Justice's new policy is that Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination based on transgender status. This is a reversal from former Attorney General Eric Holder’s 2014 stance that Title VII’s protections from sex discrimination extend to gender identity, including transgender status.

The Sessions interpretation of what constitutes discrimination based on “sex” is much narrower. Sessions’ memo stated that “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.” Sessions’ opinion is that because the statute didn’t explicitly include gender identity and transgender status, its silence should be construed as intentionally having left them out.

What does this reversal of policy mean in terms of any changes for schools? The short answer is that we really don’t know at this point. The matter is likely to continue to be litigated, as the Sessions policy is in direct opposition to federal court decisions and the Equal Employment Opportunity Commission’s own position. Additionally, the U.S. Supreme Court hasn’t given its interpretation of what “sex” discrimination encompasses. Almost certainly this issue will continue to evolve.

Please let me know if you have any questions.

Terri Thomas

Legal Services

Terri Thomas serves as Director of Legal Services for OPSRC. Ms. Thomas is an attorney practicing exclusively in the area of Oklahoma school law, with a primary focus on rural and smaller school districts. Prior to OPSRC, she served as legal counsel for the Organization of Rural Oklahoma Schools (OROS).

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