Transgender Protections Rollback by Sessions Draws Scrutiny

Transgender Protections Rollback by Sessions Draws Scrutiny

While Americans focused on the tragedies unfolding in Las Vegas and Puerto Rico, Attorney General Jeff Sessions quietly rescinded a memorandum that protected transgender people from workplace discrimination.

Eric Holder, President Obama’ first attorney general, had issued the memo in December 2014, extending the Civil Rights Act’s Title VII protections against employment discrimination to transgender people on the basis of gender identity, a separate category from sex. Sessions’s memo, which was circulated on October 5, noted that the protections on the basis of sex “[did not] encompass discrimination based on gender identity per se, including transgender status.” A DOJ spokesman defended Sessions’s decision, saying “The Justice Department cannot expand the law beyond what Congress has provided; Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action.”

Kris Hayashi, the executive director of the Transgender Law Center, criticized Sessions’s legal argument—that Title VII’s language doesn’t apply to “transgender status”—as a way to circumvent anti-discrimination laws: “The Department of Justice memo on Title VII tries to undo established law protecting transgender employees simply by wishing it so,” he said in a statement. “This is a vicious action intended to cause confusion where there was none.” Others, like Sharon McGow of Lambda Legal, argue that Sessions’s announcement also contradicts previous federal rulings: in 2012, the U.S. Equal Employment Opportunity Commission ruled that transgender workers are protected under Title VII. McGow told NBC News that the memo was “weak and thin in terms of legal analysis,” and that it “ignores two decades of law that have essentially unanimously concluded that discrimination against transgender people is a form of sex discrimination.”

Rescinding the Obama administration policy is yet another signal that LGBTQ rights are a low priority for the Trump administration. “Courts have repeatedly ruled that transgender people are protected by sex discrimination laws in employment, education, housing and healthcare,” said Mara Keisling, the executive director of the National Center for Transgender Equality, in a statement. “We’ll see him in court.”

Transgender people are also more likely to live in poverty than the rest of the general population. In the face of discrimination, transgender people often have had to resort to illicit work to survive. According to a 2015 survey by the National Center for Trans Equality, almost 20 percent of transgender respondents reported that they had engaged in some form of sex work for food, money, or shelter, risking disease, incarceration, and violence.

Transgender people are a highly marginalized group, even within the LGBTQ community. The Anti-Violence Project found that between January and August of 2017, 50 percent of LGBTQ homicide victims were transgender or gender-nonconforming people. Transgender women of color are killed at higher rates than other groups, and they face higher rates of domestic violencehomelessness, and unemployment than other LGBTQ people.