Attorney General Nixes Title VII Gender I.D. Protection

By Brooke Colaizzi

Attorney General Jeff Sessions informed U.S. Attorneys and federal agencies on Wednesday that Title VII does not protect gender identity as a status. Noting that the position was a “conclusion of law, not policy,” Sessions announced the Department of Justice’s conclusion that under statute, discrimination because of gender identity or transgender status is not discrimination “because of sex.”

Sessions did acknowledge that Title VII may provide protection to transgender individuals in certain circumstances, likely referring to claims based on a “sex stereotyping” theory. Sex stereotyping claims are usually based on allegations that an individual was discriminated against for failing to conform to traditional notions of male or female behavior or appearance.

The Department of Justice’s conclusion reverses the position taken in recent years by the Obama Administration, the EEOC, and an increasing number of federal courts. As many of us first address gender identity claims in charges brought before the EEOC, we will watch with interest to see how the EEOC responds to Sessions’ pronouncement.