In a landmark announcement on Thursday, a memo from outgoing Attorney General Eric Holder was released that offered a new reading of Title VII, one piece of the 1964 Civil Rights Act that makes it unlawful for an employer
“To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”?
That new reading, according to Holder, would include transgender persons as protected based on its inclusion of the word “sex,” which Holder is translating as also including discrimination based on?”gender.”
Clarifying the Point
You may be asking yourself: how is “sex” and “gender” different? What do the two terms mean and how do they relate to one another? Here’s a brief definition of how these terms are being applied.
Sex is biologically determined. At birth (or even earlier with ultrasound technology), a person is determined to have either male or female genitalia and is classified as male, female, or other based on the appearance of those genitalia.
Gender, on the other hand, is an identity. That identity is determined based on a set of behaviors and performances that are perceived as either masculine or feminine. These lines are often blurred. Enjoying sports, for instance, is often seen as a masculine trait, although we know that not all men love sports and many women do. These traits are socially constructed instead of inherent, meaning that those traits are dictated by current attitudes and perceptions of them, change over time, and are not behaviors with which we are born.
Let’s also discuss the definition of the word “transgender.” Merriam-Webster defines the term to mean:
“Of, relating to, or being a person (as transsexual or transvestite)?who identifies with or expresses a gender identity that differs from the one which corresponds to the person’s sex at birth.”
While even this definition, or any definition of this length, does not cover the complexity of gender identity or its social performance and construction, it provides a starting point for discussion.
Implications
This reading changes significantly the application of Title VII by the US Department of Justice since 2006, when former US Attorney General and Bush appointee Alberto Gonzalez offered a reading of Title VII that did not include protections of transgender persons. While the reading is not meant, according to Holder, to prescribe litigation, but to change the treatment by the DOJ of discrimination claims filed by transgender people.
According to TheGrio.com, this new interpretation means that “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,” and that’s the very basic and bare bones implication of Holder’s reading of Title VII.
The new reading certainly has significant and much-needed implications for transgender people. The ACLU’s website states that:
“Transgender people commonly face a wide variety of discriminatory barriers to full equality.? Transgender people sometimes face difficulties meeting their basic needs (getting a job, housing, or health care) or in having their gender identity respected (like in the simple act of going to a public restroom).”
Further implications are yet to be determined, although Chris Johnson of The Washington Blade wonders “whether the Justice Department will also interpret the prohibition on gender discrimination under Title VII to also cover claims based on sexual orientation.” Discrimination based on sexual orientation has not previously been protected under Title VII and the announcement could have serious implications on discrimination suits brought not only against federal employers but in housing and education, as well.
Reaction
The reaction to Holder’s memo has been somewhat mixed. Transgender activist groups are pleased with Holder’s announcement, such as?Ilona Turner, Legal Director of Transgender Law Center, who released a statement saying:
?This announcement will have far-reaching effects for transgender people both within the federal workforce and beyond, influencing the courts as well as other employers looking at their legal obligations under Title VII…Our communities remain disproportionately unemployed and living in poverty. Legal protections against discrimination can make a real difference.?
The Family Research?Council holds a different view. Peter Sprigg, Senior Fellow for Policy Studies, writes:
“Parents are deeply concerned that giving a special status to transgender persons will lead to troubling situations for their children, and religious leaders are left unsure how this arbitrary new rule will affect hiring within their ministries. This is another example of the Obama administration circumventing the role of Congress in imposing its own radical re-interpretation of the law. It seems safe to assert that not a single member of Congress in 1964 would have believed that they were granting special rights to people who want to reject or change their biological sex.”
Sprigg, of course, is referring to the anti-discrimination law’s interpretation of protecting transgender persons as “special” rights instead of “equal” rights. He is also ignoring the fact that religious entities are often exempt from such federal mandates, such as the Supreme Court’s recent decision to allow Hobby Lobby to deny its employees access to birth control methods that the religious views of its owners determined were contrary to their beliefs.
Conservative commentary from The National Review included Ed Whelan’s reaction to this article, in which he also insists that Holder is overreaching with encouragement from President Obama, and that Holder is arbitrarily changing the meaning of “sex” and replacing it with “gender” since:
“A man who identifies as a woman?yes, even a man who butchers and drugs himself to appear more like a woman?is still a man.”
Clearly, this will not be a unifying issue and could lead to more interesting debate in the 2016 election as well as Supreme Court cases when discrimination lawsuits filed by transgender persons reach the highest courts.
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Carissa is a proud feminist and self-described nerdy chick and pop culture junkie. She graduated summa cum laude with a bachelor’s in Women’s and Gender Studies from the University of Louisville and is currently completing her master’s degree. Her previous work experience is in social justice along with two full-time AmeriCorps terms as a language tutor for immigrant children. In her spare time, Carissa enjoys reading, heavy metal music, and being the Crazy Aunt to her nieces and nephews.
