“I have determined that the best reading of Title VII’ s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status,” Holder wrote.
The news wasn’t entirely surprising. Though courts in the past have differed on whether Title VII applies to transgender people, they seem in more recent years to have come to the same conclusion that Holder outlined in his memo. Moreover, the Justice Department has submitted legal briefs in a number of individual discrimination lawsuits asserting this very position.
Nevertheless, transgender advocates praised Holder’s memo, saying it is significant that the attorney general laid out his rationale so clearly and publicly, putting the force of the government behind this interpretation. Harper Jean Toblin, director of policy for the Center for Transgender Equality, called it a “clear, strong statement” indicating that “this is now the legal position of the federal government, period.”
Advocates said the statement also strengthens the argument that discrimination against transgender people will not be tolerated in other arenas, such as housing and public education.
Holder was criticized by the Family Research Council, a socially conservative group. Peter Sprigg, senior director for policy studies, said the interpretation was “inconsistent with the original legislative intent” of the Civil Rights Act. “Probably not one person thought they were passing a bill to protect men who wanted to become women or women who wanted to become men,” he said.
In his memo, Holder acknowledged that “Congress may not have had such claims in mind when it enacted Title VII.” But he wrote that “the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.'”
According to the 2011 National Transgender Discrimination Survey, a survey of 6,450 transgender people in the United States, transgender people experience twice the rate of unemployment as other Americans and are much more likely to live in poverty. Advocates attribute those facts in part to the difficulty transgender people face in finding a job.
Ninety percent of respondents said they had experienced harassment, mistreatment or discrimination on the job, and 47 percent said they had experienced an adverse job effect — such as being fired or passed over for a promotion — because of their gender identity issues.