In an October 4, 2017 letter to all United States attorneys and heads of federal agencies, Attorney General Jeff Sessions announced that the Department of Justice (“DOJ”) will no longer interpret Title VII of the Civil Rights Act of 1964 (“Title VII”) to provide employment protections to transgender individuals. This statement reversed former Attorney General Eric Holder’s position, who previously concluded that Title VII does protect transgender individuals from employment discrimination.
Although this letter from the Attorney General is a departure from the DOJ’s prior position, this announcement is not surprising. Earlier this year the DOJ filed a brief, without being asked by the court, in a case before the Second Circuit Court of Appeals in Zarda v. Altitude Express. The DOJ argued that Title VII does not prohibit employment discrimination on the basis of sexual orientation. In that same matter, the current Equal Employment Opportunity Commission’s (“EEOC”) argued that Title VII does prohibit discrimination on the basis of sexual orientation. This case has not yet been decided, but Judge Rosemary Parker of the Second Circuit noted during oral arguments that “[i]t’s a little bit awkward for us to have the federal government on both sides of the case.”
