On October 4, 2017, Attorney General Jeff Sessions issued a DOJ memo taking the position -- and reversing an Obama Administration position -- that Title of the Civil Rights Act of 1964 does not prohibit discrimination based on gender identity, reasoning that Title VII only prohibits decisions based on sex stereotypes that result in disparate treatment between men and women and does not prohibit practices, such as sex-specific dress codes, that take account of sex but do not impose a greater burden on one sex than the other. This position should not be particularly surprising because it is consistent with what DOJ argued in its amicus brief in Zarda v. Altitude Express.
As discussed in my most recent post, Harris Funeral Homes has adopted the same interpretation of Title VII's sex discrimination prohibition in defending its claim against the EEOC. Although numerous courts have held that Title VII prohibits gender identity discrimination, they have reached that conclusion without reconciling it with settled precedent that allows employers to treat the sexes differently under certain circumstances, such as in requiring sex-specific dress codes. DOJ's position grapples with that precedent by construing Title VII's protections narrowly.
To be sure, DOJ can be faulted for taking a position that limits the protections afforded American workers. Nevertheless, it has raised legitimate arguments that have been overlooked for years and that should have been refuted long ago by LGBT advocates.
This
blog reflects the views solely of its author. It is not intended, and
should not be regarded, as legal advice on how to analyze any particular
set of facts.
