Attorney Offers Guidance After DOJ Stand On Gender Identity Clouds Legal Issues

Betsy Davis

Keep abreast of the ongoing and latest developments and changes in the law at the federal, state, and local levels, and ensure that existing policies comply

The Trump Administration’s Department of Justice (DOJ) recently announced it no longer considers gender identity to be a protected class under Title VII of the Civil Rights Act of 1964 (Title VII). This could squeeze business owners if there’s a conflict between state and federal gender identity discrimination laws, and further potential conflicts between the EEOC and the DOJ, warns Betsy Davis, a shareholder in national law firm LeClairRyan’s Richmond office. But she offers some advice on navigating these rocky issues.

During the Obama administration’s two terms, the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) considered gender identity as a protected class under Title VII of the Civil Rights Act of 1964 (Title VII). But Attorney General Jeff Sessions “communicated in a letter to all U.S. Attorneys on October 4, 2017 that Title VII does not cover bias based on transgender status,” Davis reports in a recent blog, Is Gender Identity a Protected Class? Her post appears in the firm’s LR Workplace Defender blog, which focuses on employment litigation issues.

In his letter, AG Sessions wrote, “This is a conclusion of law, not policy” and “the Department of Justice must interpret Title VII as written by Congress,” reversing a December 2014 position taken by former Attorney General Eric Holder.

“The DOJ’s revised position on gender identity is in direct conflict with the position taken by the EEOC,” Davis observes. “Currently, the EEOC considers discrimination against an individual because of…

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