Title VII Memo

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December 15, 2014
MEMORANDUM
TO:
UNITED STATES ATTORNEYS

HEADS OF DEPARTMENT C~M~NTS
FROM:
THE ATTORNEY GENERAL~
SUBJECT:
Treatment ofTransgender Employment Discrimination Claims

Under Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate
in the employment of an individual "because of such individual's ... sex." 42 U.S.C. 2000e2(a) (prohibiting discrimination by private employers and by state and local governments); 42
U.S .C. 2000e-16(a) (providing that personnel actions by federal agencies "shall be made free
from any discrimination based on ... sex"). Title VII's prohibition of sex discrimination is a
strong and vital principle that underlies the integrity of our workforce. In a variety of judicial
and administrative contexts, however, questions have arisen concerning the appropriate legal
standard for establishing claims of gender identity discrimination, including discrimination
claims raised by transgender employees. 1
Many courts have recognized that gender identity discrimination claims may be
established under a "sex-stereotyping" theory. Following the Supreme Court's decision in Price
Waterhouse v. Hopkins , 490 U.S. 228 (1989), courts have interpreted Title VII's prohibition of
discrimination because of "sex" as barring discrimination based on a perceived failure to
conform to socially constructed characteristics of males and females. See, e.g., Smith v. City of
Salem, 378 F.3d 566 (6th Cir. 2004); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st
Cir. 2000); see also Glenn v. Bromby, 663 F.3d 1312 (11th Cir. 2011). But courts have reached
varying conclusions about whether discrimination based on gender identity in and of itselfincluding transgender status--constitutes discrimination based on sex. Compare Schroer v.
Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), with Etsitty v. Utah Transit Auth., 502 F.3d 1215
(10th Cir. 2005).
The federal government's approach to this issue has also evolved over time. In 2006, the
Department stated in litigation that Title VII' s prohibition of discrimination based on sex did not
cover discrimination based on transgender status or gender identity per se; the district court
rejected that position. See Schroer, 577 F. Supp. 2d at 293. Subsequently, in 2011, the Office of
1
Guidance from the Office of Personnel Management states that "[t]ransgender individuals are
people with a gender identity that is different from the sex assigned to them at birth," and defines
"gender identity" as an individual's "internal sense of being male or female." See
http://www.opm.gov/diversity/Transgender/Guidance.asp.
Personnel Management issued guidance announcing that the federal government's policy of
providing a workplace free of discrimination based on sex includes a prohibition against
discrimination based on gender identity. In 2012, the Equal Employment Opportunity
Commission ruled that discrimination on the basis of gender identity is discrimination on the
basis of sex. Macy v. Holder, Appeal No. 0120120821 (EEOC April 20, 2012). More recently,
the President announced that discrimination based on gender identity is prohibited for purposes
of federal employment and government contracting. See Executive Order 13672 (July 21, 2014);
see also U.S. Dep't of Labor Directive 2014-02 (August 19, 2014).
After considering the text of Title VII, the relevant Supreme Court case law interpreting
the statute, and the developing jurisprudence in this area, 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. The most straightforward reading of Title VII is
that discrimination "because of ... sex" includes discrimination because an employee's gender
identification is as a member of a particular sex, or because the employee is transitioning, or has
transitioned, to another sex. As the Court explained in Price Waterhouse, by using "the simple
words 'because of,' ... Congress meant to obligate" a Title VII plaintiff to prove only "that the
employer relied upon sex-based considerations in coming to its decision." 490 U.S. at 241-242.
It follows that, as a matter of plain meaning, Title VII' s prohibition against discrimination
"because of ... sex" encompasses discrimination founded on sex-based considerations, including
discrimination based on an employee's transitioning to, or identifying as, a different sex
altogether. Although Congress may not have had such claims in mind when it enacted Title VII,
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, and it is ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Servs.,
523 U.S. 75, 79 (1998).
For these reasons, the Department will no longer assert that Title VII's prohibition
against discrimination based on sex does not encompass gender identity per se (including
transgender discrimination). 2 This memorandum is not intended to otherwise prescribe the
course of litigation or defenses that should be raised in any particular employment discrimination
case. The application of Title VII to any given case will necessarily tum on the specific facts at
hand. My hope, however, is that this clarification of the Department's position will foster
consistent treatment of claimants throughout the government, in furtherance of this Department's
commitment to fair and impartial justice for all Americans.
If you have questions about this memorandum or its application in a case, please contact
your Civil Chief or your Component's Front Office.
"Sex-stereotyping" remains an available theory under which to bring a Title VII claim,
including a claim by a transgender individual, in cases where the evidence supports that theory.
2

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<@ffice of t~e 1\ttcrncl!

UNITED STATES ATTORNEYS

THE ATTORNEY GENERAL~

Treatment ofTransgender Employment Discrimination Claims

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