Attorney General Sessions Argues Civils Rights Act Doesn’t Bar Discrimination against Transgender Persons

Earlier this October, Attorney General Jefferson Beauregard Sessions III ordered the Justice Department to argue in court that transgender people are not protected by the Civil Rights Act. The Civil Rights Act protects employees from discrimination based on gender. The Obama Administration had argued, often successfully, that “gender” included gender identity. Under Sessions, “sex” and “gender” would mean biological sex and gender only.

Session’s new policy faces an uphill battle, and potentially a losing war. The Equal Employment Opportunity Commission (EEOC) has continued to support transgender employees, as recently as this summer. Additionally, there are a number of cases where the courts have ruled in favor of the Obama Administration’s position. Court precedents stretching back to the 1980’s support the argument that illegal discrimination against gender can include discrimination against gender stereotypes.

What is the Difference Between Gender Stereotypes and Gender Identity?

The greatest challenge Jeff Sessions will have is explaining how gender stereotypes and gender identity are different. If discrimination based on gender stereotypes is illegal, how is discrimination based on gender identity legal?

Under judicial precedent, employers cannot punish female employees for not being feminine enough. Employers cannot demand individual women to speak or dress more femininely to succeed in the business world. The general idea is that punishing a person for not conforming to a gender stereotype would mean penalizing a person for being the “right kind” of woman.

Session’s new policy will have to untie the Gordian knot that gender stereotypes are linked with gender identity. If a man behaves more femininely or if a woman is more masculine than her co-workers, employers have no right to punish that employee for not conforming to what the employer believes to be appropriate gender boundaries.

Of course, feminine men or masculine women are not always transgender. Transgender persons might not see themselves as feminine men or masculine women. However, employers and laypeople might see transgender men as masculine women or transgender women as feminine men. The two are inseparable and enforcing a policy that allows for discrimination against transgender while the law prohibits gender stereotyping will be virtually impossible.

Comparable Evils

Jeff Sessions’s biggest defense for his reversal in transgender protections is that he is merely enforcing the law. It was the Obama administration that violated the Civil Rights Act by expanding the meaning of “gender” beyond what Congress intended.

There are two problems with this argument. First, Congress has never stated that gender only means biological sex of the person. Congress has largely been silent on the matter. Republicans have had control of Congress for the last several years and have yet to even hold hearings on the interpretation of gender in the Civil Rights Act (in contrast with 56+ attempts to repeal Obamacare while President Obama was in office). If Congress really had an issue with the President Obama’s interpretation of gender, one assumes Congress would have at least passed a bill objecting to it.

Second, the Supreme Court has ruled on whether the Civil Rights Act can be interpreted beyond the original intent of Congress. In 1998, the late Justice Scalia wrote, in a unanimous ruling about male and male sexual harassment:

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

When even the father of Originalism says that the Civil Rights can reach beyond the original understanding of the Congress that enacted it, Attorney General Sessions is clearly in the wrong.

Alternative Means

Of course, it is unlikely that Jeff Sessions will change his mind. It might be best for transgender persons to use other legal provisions to protect themselves from discrimination. This might require some creative lawyering:

• A claim under the Americans with Disabilities Act, if a transgender person is willing to argue they have a mental disability.
• An argument that their religion requires them to wear clothing of the opposite sex.

These arguments are probably trending on thin ice. With an administration that seems hell-bent on demolishing LGBT protections though, desperate times might require creative measures.