Transgender Government Workers Now Explicitly Protected by U.S. Law

Attorney General Eric Holder sent a memo reversing the Justice Department's policy on transgender workers on Thursday. File photo.  (Alex Wong/Getty Images)

The Justice Department is now interpreting federal law to categorically prohibit workplace discrimination against transgender people, according to a memo released Thursday by Attorney General Eric Holder.

That means the Justice Department will be able to bring legal claims on behalf of people who say they've been discriminated against by state and local public employers, based on sex identity. In defending lawsuits, the federal government also will no longer take the position that Title VII of the federal Civil Rights Act, which bans sex discrimination, does not protect against workplace discrimination on the basis of gender status.

Local transgender rights advocates are praising the decision.

"It's incredibly exciting that the Department of Justice has taken this step and committed that they will no longer make these outdated and offensive arguments in court cases suggesting that transgender workers are not entitled to the full protection of our nondiscrimination laws," said Ilona Turner, legal director at the Bay Area's Transgender Law Center.

The memo covers all components of the Justice Department as well as all U.S. attorney offices. The Justice Department does not have authority to sue private employers, and the new memo does not affect that.

About half of states already have some form of protection for transgender employees, including California, according to Elizabeth Hillman, provost, academic dean and professor of law at UC Hastings College of Law.

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Gov. Jerry Brown signed a law adding "gender identity and expression" to other protected categories in California nondiscrimination laws. California added protections for "gender identity and expression" in 2011.

"In a state like California, where we've had protections for some time against employment discrimination for transgender workers, the primary impact on this change is on those who are federal employees in the state of California because they have not been protected in the past by our state law," Hillman said.

The memo released Thursday is part of a broader Obama administration effort to afford workplace protection for transgender employees. In July, President Barack Obama ordered employment protection for gay and transgender employees who work for the U.S. government or for companies holding federal contracts.

The new position is a reversal for the Justice Department, which in 2006 stated that Title VII did not cover discrimination based on transgender status.

"The federal government's approach to this issue has also evolved over time," Holder wrote in the memo, saying his position was based on the "most straightforward reading" of the law.

Mara Keisling, executive director of the National Center for Transgender Equality, welcomed Holder's memo but said that rather than break new ground, it mainly affirms a position the Equal Employment Opportunity Commission has been taking since 2012. Keisling said it is also consistent with how the Education Department has applied Title IX, the federal law that prohibits sex discrimination in education, to discrimination complaints brought by transgender students.

Because many of the gains have been made through executive orders, on both the state and federal levels, a change in administration could impact the laws.

"In at least one state … a new governor has allowed lapse a set of protections that had been previously passed. The difficulty of legal change through executive order and through executive agencies is it can be temporary," Hillman said. "However, it's very tough to roll back protections on which individuals start to rely."

Ohio's former governor, Ted Strickland, had prohibited discrimination against workers based on sexual orientation or gender identity. But in 2011 his successor, John Kasich, allowed that executive order to expire.

Read the memo


The Associated Press contributed to this report.