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Attorney General Holder moves to protect transgendered under Civil Rights Act


In a reversal of an earlier position that will affect public employers, U.S. Attorney General Eric Holder has announced that the Department of Justice will now take the position in litigation that Title VII of the Civil Rights Act of 1964 extends to protecting transgendered individuals.

The Justice Department in a statement said Mr. Holder has informed department officials and U.S. attorneys in a memo that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination.

“This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status,” Mr. Holder said in the statement. “This will help to foster fair and consistent treatment for all claimants. And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”

There has been ongoing federal government movement toward protecting transgendered individuals. In August, the Department of Labor’s Office of Federal Contract Compliance Programs issued guidance to companies that hold contracts with the federal government on the issue of extending federal discrimination laws to transgendered individuals. That followed an executive order issued by President Barack Obama in July that barred federal contractors from discrimination on the basis of sexual orientation.

With respect to private employers, Congress, however, has so far failed to approve the Employment Non-Discrimination Act, which would make it illegal for employers with more than 15 full-time workers to refuse to hire, terminate or otherwise discriminate against any individual on the basis of their actual or perceived sexual orientation or gender identity, classes that are not currently protected under Title VII.

Despite this, however, the U.S. Equal Employment Opportunity Commission filed gender discrimination lawsuits in September in Michigan and Florida against employers it said discriminated against transgender employees.

The Holder memo is “another step” toward protecting transgendered individuals, said Denise Visconti, a shareholder with law firm Littler Mendelson P.C. in San Diego.

In light of the memo, she recommended that public employers examine their policies to determine whether or not they are discriminatory against transgendered individuals.

Another area of concern is restrooms or locker rooms. She said a best practice would be for employers to permit workers to use those facilities that are earmarked for the gender with which they identify.

Yet another area of concern is health insurance policies. Ms. Visconti said public employers should examine these polices to see whether they have discriminatory provisions, such as those that exclude coverage for hormone treatments, surgeries and other medical treatments applicable to transgendered individuals.

Public employers that have policies that “specifically carve out someone who is transgendered” should re-examine those, Ms. Visconti said.

Ms. Visconti noted that the Justice Department policy applies only to public employers. Pointing, however, to the EEOC’s litigation on this issue, Ms. Visconti said, “There certainly is a foreshadowing” that private employers will also eventually be required to adopt nondiscrimination policies against transgendered individual as well. They should also be “taking a look at their practices and policies with regard” to transgendered individuals, Ms. Visconti said.

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