Gender Identity No Longer Protected Under Title VII

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Following close on the heels of other Obama administration-era rollbacks (see Education Secretary Betsy DeVos’s recent announcement rescinding prior guidance as to the standard of proof to be applied under Title IX), Attorney General Jeff Sessions announced yesterday that it is the Department of Justice’s position under President Donald Trump that it will no longer interpret Title VII of the Civil Rights Act to extend the law’s protections against discrimination based on gender or sex, to discrimination based on gender identity.  In 2014, then-Attorney General Eric Holder had issued a memo that the Justice Department was taking the position that Title VII encompasses discrimination based on gender identity, including transgender status.  Attorney General Sessions has indicated that the new policy will go into effect immediately and applies to pending  matters.  This could mean that any administrative charges pending before the EEOC or other agencies alleging gender identity discrimination under Title VII may be summarily dismissed.

Note for Washington state employers: While the federal government may have changed course in this regard, RCW 49.60 expressly protects employees based on gender identity and remains in effect and in force.  See RCW 49.60.040(26)(gender identity included under sexual orientation).

If you feel your policies may need updating in light of the change in or if you have any questions as to how this may impact your organization, please do not hesitate to reach out to a member of the Helsell Fetterman Labor and Employment team for assistance.

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