In a landmark decision released Thursday, the Department of Justice has announced it will apply the 1964 Civil Rights Act to protect transgendered government employees from discrimination, according to a recent memo.
Attorney General Eric Holder is arguing that Title VII, the section dealing with gender identity discrimination, also implicitly includes individuals who identify with a different gender than the one assigned them at birth. For Holder, the move has some precedent, given that courts have in the past interpreted Title VII of the Civil Rights Act to apply when individuals were discriminated against for failing to conform to traditional gender stereotypes.
“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,” Holder stated in the memo.
Holder added that Congress’ intentions at the time of the legislation’s passing is irrelevant to the interpretation of Title VII. Instead, interpretation is supposed to be based purely on the text’s plain meaning, which in this case entails that discrimination based on gender identity is prohibited.
At times, the courts have wrestled back and forth on the plain meaning of the text, and the approach taken by the federal government bureaucracy has also evolved, with the first sign of change arriving in 2011. The Office of Personnel Management stated that in order for a workplace to be free of discrimination, it must also be free of gender identity discrimination.
Holder’s memo is part of a broader effort by the Obama administration to be more inclusive and has been seen by some as a substitute for Congress’ failure to pass a version of the Employment Non-Discrimination Act which includes protection for sexual orientation and gender identity. However, Holder’s interpretation of Title VII is vastly different than the DOJ’s interpretation under the Bush administration in 2006, which rejected the idea that discrimination applied to transgender status.
As a sign of his commitment, back in July, Obama also issued an executive order protecting government employees or federal contractors from any discrimination they may face as a result of identifying as gay or transgender.
DOJ’s Civil Rights Division can now enforce the decision against any state and local governments in the event of non-compliance.
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