Fair and impartial justice for all Americans

December 18, 2014 1:07 PM

The Department of Justice issued a memo today (pdf) stating that the litigation concerning gender identity employment discrimination regarding transgender Americans working in the federal government will be covered under the sex discrimination prohibition in Title VII of the Civil Rights Act of 1964.

Attorney General Eric Holder writes, “the Department will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).”

Public sector workers who are gay are already protected against discrimination on the basis of their sexual orientation.

posted by roomthreeseventeen (27 comments total)

Fucking A man, Obama is fucking rocking this shit HARD.

I'd still wish we were more explicit in the law and didn't leave it up to the whim of the administration, but this at least sets a precedent...
posted by symbioid at 1:43 PM on December 18, 2014 [3 favorites]

Huh. I thought this was already the policy. Was it that the Dept. of Ed. decided that Title IX covered trans* people in schools?
posted by klangklangston at 1:50 PM on December 18, 2014

Yay, something that isn't terrible!
posted by Librarypt at 1:52 PM on December 18, 2014 [11 favorites]

Lame duck President Obama is pretty fun.
posted by Elementary Penguin at 1:57 PM on December 18, 2014 [17 favorites]

klangklangston, yes, that was this from DOE.
posted by roomthreeseventeen at 1:58 PM on December 18, 2014 [1 favorite]

I'll just link to my comment from yesterday.
posted by octothorpe at 2:11 PM on December 18, 2014 [1 favorite]

Meanwhile, while most large LGBT organizations have wised up and stopped throwing us under the bus, Republicans have taken up the mantle, and are using trans inclusion as their primary FUD strategy in service of opposing LGBT protections in general.

klang, the thing you're thinking of is the referenced EEOC decision in Macy v. Holder, which should apply to both public and private employers. This is an updated policy stance from the DOJ reflecting that and the outcome of a previous lawsuit. This is good, but it's very difficult to make a case through this process, which isn't even rock solid and could theoretically be overturned (as I understand it) at the whims of a high court. Explicit protections federally and locally are still needed, but Republicans have already been using things like this as an excuse for opposing clear downstream laws that would make protections more immediately useful and more broadly enforceable. (ie: Boehner: "ample laws already in place")
posted by Corinth at 2:16 PM on December 18, 2014 [5 favorites]

This is good news! Even if the Justice Department wasn't actively against trans people in their litigation in general (which I'm unsure about), counting it as Title VII means that it gets the benefit of the expertise of that office, which is going to be better-funded than some obscure speciality thing. Similarly, it gains the jurisprudence of Title VII, assuming the courts go along with it - and since the change is in part because the courts have said so, that's pretty likely.

In some ways this is better then an explicit new law. I think you can make arguments either way, but my thinking is that this will ingrain the "trans gender issues are, legally, just gender issues" mentality in the low level professional side, who will go on to be the higher up legal drafters and such.

Of course there are aspects of trans issues that require specialized work, and specialized legal issues, but they can be done as task forces / subdepartments of the Title VII office.
posted by Lemurrhea at 2:20 PM on December 18, 2014 [1 favorite]

Quite apart from being obviously the right thing to do, this is also a very clever thing to do. If Republicans are against this, they'll have to proactively be against it: write laws constraining the DOJ (if that can even be done?), put in a new AG if they win in 2016 who will have to spell out 'we are no longer treating trans people equally under the law,' whatever. It hands ammunition to every Democrat who gets to say "Since when do we take rights away from people in America?" when--not if--this happens.

That, or the Republicans just have to accept it. Win-win.
posted by feckless fecal fear mongering at 2:33 PM on December 18, 2014 [5 favorites]

feckless fecal fear mongering, describing the stripping away of rights of trans people for political points-scoring "when--not if--" that happens as a "win" is fucking atrocious.
posted by Dysk at 2:50 PM on December 18, 2014 [6 favorites]

That isn't at all what I was doing. Republicans now and will continue in the future denying rights and equality to trans people. It looks to me like the choice to implement this absolutely correct decision in this way helps to provide ammunition against when Republicans try again. That is the win: not only is equality guaranteed (well, for two more years at least), but extra bolstering--over and above the what-should-be-self-evident argument of 'people are people and have the right to be treated equally'--when the regressive assholes try to poke holes in it. Good thing now + built-in-defence for later = win win. Not about political points-scoring.
posted by feckless fecal fear mongering at 3:00 PM on December 18, 2014 [9 favorites]

It's not a built-in defence for later - people may get to say "since when do we take rights away" and it may make them look good, but it's not going to stop the Republicans doing just that. That is not a win. A win would be new legislation, not a clarification from the Attorney General about the DoJ's current position which can later be changed by a new Attorney General.
posted by Dysk at 3:05 PM on December 18, 2014 [3 favorites]

We can disagree on that point. I was attempting to clarify that your characterization of what I said was mistaken.
posted by feckless fecal fear mongering at 3:06 PM on December 18, 2014 [1 favorite]

If Republicans are against this, they'll have to proactively be against it: write laws constraining the DOJ (if that can even be done?), put in a new AG if they win in 2016 who will have to spell out 'we are no longer treating trans people equally under the law,' whatever. It hands ammunition to every Democrat who gets to say "Since when do we take rights away from people in America?" when--not if--this happens.

That, or the Republicans just have to accept it. Win-win.

So they can accept it OR they can take our rights away ("when--not if") and either way is a win.

If that isn't what you meant to say, you did an incredibly poor job of phrasing.
posted by Dysk at 3:09 PM on December 18, 2014

You're still mischaracterizing what I said. They can accept it, or when they attempt again to take rights away, there is a useful bulwark that will play well in the court of public opinion. It's imperfect progress, to say the least, but it's a move forward and that's a good thing.

Which is not to say in any way that any trans person or ally should say "well, okay, battle's over." It's not, obviously. But it's a movement in the right direction that, to me, seems to come in a way that adds a hurdle to removing it. (Not that regressives won't attempt to jump as many hurdles as they see, of course, but if we put enough in front of them they will eventually give up). That is all I am saying, and I would personally appreciate a little more charity given to what I am saying instead of an instant leap to 'atrocious' and 'poor job of phrasing.' To be absolutely crystal clear: no rest until there is full equality for everyone, and recognize that decisions like this are at least moving in the right direction, without accepting that small movements are the final movements; that is my position.
posted by feckless fecal fear mongering at 3:17 PM on December 18, 2014 [2 favorites]

ok guys ... Moving on now?
posted by edgeways at 3:22 PM on December 18, 2014 [3 favorites]

Macy v Holder only applies to the federal government, no one else.

there is no cause of action for discrimination based on sexual orientation for federal employees.

Holder's saying they aren't going to argue in the federal courts or in discrimination cases before EEOC administrative judges that there is no transgender discrimination cause of action.

non-federal employees have no federal right to either.
posted by Ironmouth at 4:19 PM on December 18, 2014

It's interesting that in the UK such protections were also argued under the existing Sex Discrimination Act. I don't remember the case, but it was a long time ago, like 1999 or even earlier. I think the jist was not, "you're treating men and women differently" (the original reading of the law), but rather, "you're treating the person differently now than when they were a man/woman".
posted by Thing at 4:24 PM on December 18, 2014

Macy v Holder only applies to the federal government, no one else.

This is one of those pedantic lawyer comments that annoy people. As I understand it, Macy v Holder only applies to the federal government, but there was a clear implication that the same logic would be employed to an EEOC complaint against other employers.
posted by hoyland at 4:26 PM on December 18, 2014

(Though saying "the same logic would apply" is a long way from someone successfully bringing a complaint and we shouldn't lose sight of that.)
posted by hoyland at 4:26 PM on December 18, 2014

Macy v Holder only applies to the federal government, no one else.

This is one of those pedantic lawyer comments that annoy people. As I understand it, Macy v Holder only applies to the federal government, but there was a clear implication that the same logic would be employed to an EEOC complaint against other employers.

Just trying to help. EEOC processes complaints for the private sector, but the administrative judges only work federal employee cases. all non-federal employees must sue in court. so the fact that eeoc is going to process complaints for that cause of action is a small thing.
posted by Ironmouth at 4:30 PM on December 18, 2014

I definitely don't know much about it, but the EEOC can sue employers and the federal government doing it is a whole different kettle of fish than your average trans person doing it (given that your average trans person doesn't have the resources for protracted litigation).
posted by hoyland at 4:35 PM on December 18, 2014

I feel like this is somewhat depressingly, I don't know, binary-reinforcing or medicalising in a way I can't quite articulate, like you're only "deserving" of protection if you have "changed sex". Of course, at the same time, the easiest way to advance trans equality is usually to do some clever shoe-horning into existing legislation. The Minnesota Human Rights Act has protected trans people since 1993, not because the Minnesota legislature is good at trans issues but because someone was clever enough to define 'sexual orientation' in the law as including gender identity. There are some rumblings about maybe trying to fix that, but it's too risky--they couldn't get trans protection outright in 1993 and they still couldn't get it now.
posted by hoyland at 4:50 PM on December 18, 2014

I definitely don't know much about it, but the EEOC can sue employers and the federal government doing it is a whole different kettle of fish than your average trans person doing it (given that your average trans person doesn't have the resources for protracted litigation)

most definitely. but they lack the power to provide relief as they can with federal employees. Macy is a ruling that says that all Administrative Judges must allow such cases to go forward and to grant relief to transgender individuals victimized by discrimination.
posted by Ironmouth at 5:00 PM on December 18, 2014

Does that also apply to indirect federal employees, i.e. contractors?
posted by klangklangston at 7:29 PM on December 18, 2014

It looks good, and including it in existing legislation is very good, but it is perhaps telling that my immediate response is suspicion that it will not have any practical benefit for real people and hunting for loopholes that will allow employers to continue discriminating (beyond "right to work" blanket discrimination that nullifies through opacity). Because, in actual effect, I expect nothing to change because of this.
posted by byanyothername at 8:37 AM on December 19, 2014 [2 favorites]

The Human Rights Campaign, the nation's largest LGBT organization, is taking action against Saks Fifth Avenue after the luxury retail giant tried to get a transgender discrimination lawsuit dismissed by arguing that anti-trans discrimination is not illegal under the Civil Rights Act of 1964.

posted by Corinth at 3:29 PM on January 8, 2015