US Department of Justice: Title VII does not protect transgender employees

A big shout out to our esteemed and erudite partner Eric B. Meyer for his excellent blog post today on the status of Title VII as it pertains to gender identity, sexual orientation, and transgender employees.

He begins by noting that:

“Chris reported yesterday that the U. S. Department of Justice filed this brief with the United States Supreme Court in this case, in which it argues that Title VII of the Civil Rights Act of 1964, the federal employment discrimination law, does not cover discrimination against an individual because of the individual’s gender identity.”

Eric then creates a legal chronology which shows how we arrived at where we are today – with the government reversing its claim that gender identity and sexual orientation are covered by Title VII, and attempting to define “transgender” out of legal existence.

He starts with February 22, 2017.   One month into a new Cabinet:

“The DOJ and the Department of Education released a guidance document withdrawing their ‘position that the prohibitions on discrimination ‘on the basis of sex’ in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g., 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity.’ This caused the Supreme Court to send an important transgender rights case back to the Fourth Circuit for reconsideration.’”

He brings the chrono up through yesterday – when the DOJ filed the above-mentioned brief.

He also nicely summarizes the federal appellate cases which Amy and I have discussed at length which split on whether Title VII covers sexual orientation.  Amy and I have posted here, here and here, and Eric had a good prior post here.

He now notes:

  1. In Zarda v. Altitude Express, Inc.the Second Circuit Court of Appeals held that Title VII prohibits discrimination based on sexual orientation. The employer appealed.
  2. In Bostock v. Clayton County, the Eleventh Circuit Court of Appeals held that Title VII permits discrimination based on sexual orientation. The employee appealed.
  3. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court of Appeals concluded that Title VII bans discrimination based on gender identity. The employee appealed.

His piece is a must read for all those who are rightfully confused (and/or distressed) by the government’s reversal and its effect on pending court cases.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]