Filling in the gaps in the coverage of Sessions’ gender identity policy
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Filling in the gaps in the coverage of Sessions’ gender identity policy

October 6, 2017

The Raw Data

Unspun and unbiased. These are the facts.

US Attorney General Sessions’ memo says Title VII doesn’t prohibit ‘gender identity’ discrimination

U.S. Attorney General Jeff Sessions wrote in a memo that the Civil Rights Act of 1964’s Title VII clause, which prohibits discrimination on the basis of sex, “encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The Department of Justice (DOJ) memo, delivered to federal prosecutors on Wednesday, said the department would take this position “in all pending and future matters.”

The statement, which Buzzfeed first reported on Thursday, also said the position was a “conclusion of law, not policy,” and that the DOJ, “must and will continue to affirm the dignity of all people, including transgender individuals.”

Three years ago, the DOJ under President Obama implemented a policy that Title VII of the Civil Rights Act of 1964 was to be used to bring legal claims on behalf of transgender people discriminated against in the workplace for their gender identity.

“The Justice Department cannot expand the law beyond what Congress has provided,” said DOJ spokesman Devin O’Malley, explaining that Sessions changed the policy because his position was that the previous administration had not accurately interpreted the law.

Legal precedent

There are currently no federal laws that explicitly prohibit discrimination against transgender people in the workplace, AP reported. According to a director for the American Civil Liberties Union (ACLU), five federal appeals courts have ruled that the Title VII protections apply to gender identity as well as biological sex.

A 1989 Supreme Court case, Price Waterhouse v. Hopkins, ruled that protections against discrimination on the basis of sex applied to gender “stereotyping” and people who do not conform to stereotypes. The Supreme Court, the U.S.’ highest legal authority, has not ruled on whether protections on the basis of sex covers either gender identity or sexual orientation.

Distortion Highlights

  • If there’s a problem, wouldn’t it be good to know what it is?
  • Coverage of Sessions’ Title VII memo suggests that it’s a bad policy and will cause problems for transgender people. It may, but it’s one thing for media to suggest it and another to provide evidence for it.
  • The articles don’t include information that could help understand the issue and how the policy will change things. Below we fill in some of that missing data.

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The Numbers

See how the articles rate in spin, slant and logic when held against objective standards.

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The Distortion

The Knife’s analysis of how news outlets distort information. (This section may contain opinion)

Top Spin Words

  • Aggression

    The memo reflects the Justice Department’s aggression toward LGBT rights under President Trump and Sessions, who reversed Obama-era guidance that protects transgender students after a few weeks in office. (Buzzfeed)

  • Assailed

    But LGBT-rights advocates assailed the reversal as the latest in series of Trump administration actions targeting their constituency. (AP)

  • Dismay

    While that move was also greeted with dismay by civil rights advocates, it was less of a reversal than Mr. Sessions’s memo on Thursday, because the Obama administration never took the position that the bar to “sex” discrimination should be interpreted as extending to sexual orientation. (The New York Times)

  • Lashed out

    Civil rights groups quickly lashed out at Sessions and accused him of “yet another rollback of protections for LGBTQ people.” (The Washington Post)

  • ‘Pure Fiction’

    “The government’s response reads like pure fiction,” said Jennifer Levi, director of GLAD’s Transgender Rights Project. (The Washington Post)

  • ‘So Weak’

    McGowan, from Lambda Legal, counters, “The memo is so weak and that analysis is so thin, that courts will recognize it for what it is — a raw political document and not sound legal analysis that should be given any weight by them.” (Buzzfeed)

  • Latest Contraction

    The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement. (The New York Times)

  • ‘Cruelly Consistent’

    “Today marks another low point for a Department of Justice which has been cruelly consistent in its hostility towards the LGBT community and in particular its inability to treat transgender people with basic dignity and respect,” said James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project. (AP)

Take slanted coverage with missing data, and what do you get? Possibly a negative impression of the news without a solid understanding of what the problem is. This is the case with much of the coverage of Sessions’ Title VII policy change.

The articles we looked at are slanted against Sessions’ change and generally suggest he and the Trump administration are supporting discrimination against transgender people, and this will have “far-reaching implications” and negative effects. However, the outlets, for the most part, don’t include information that would show what the impact of the change might be or how many people it could affect. Without that, we may adopt the bias of the articles without critically understanding the issue.

Let’s look at (1) the slanted coverage that portrays the change as supporting discrimination and hurting transgender people, and (2) the missing data that, if provided, could help readers better understand what the problems may be.

1. Bias against Sessions’ decision

The outlets include interpretations that Sessions is supporting discrimination or targeting transgender people, and emphasize opinions critical of Sessions. Only some articles include that Sessions explicitly says he isn’t supporting discrimination.

For instance, Buzzfeed says the memo “reflects” the DOJ’s “aggression toward LGBT rights under President Trump and Sessions.” Yet, changing policy ­on how a law is interpreted doesn’t necessarily­ come from “aggression.” The Washington Post includes a quote saying it’s the “latest example” of the Trump administration “undermining equal rights and dignity” for LGBT people. Only two outlets quote the Sessions memo saying the DOJ “must and will continue to affirm the dignity of all people, including transgender individuals,” and that it doesn’t condone mistreating transgender people.

2. Missing data about the problem

In an ideal world, all people would be treated well at work and judged only by the merits of their job performance. Discrimination wouldn’t happen on any basis. The news articles give the impression that this will be a heightened problem with the Title VII policy change. But how would this policy change affect discrimination? Most of the coverage doesn’t say. For instance, the articles we analyzed are completely or mostly missing the following:

  • How will this change what the DOJ does in cases of transgender discrimination?

o   Only The New York Times explains that the DOJ will no longer argue sex-based discrimination cases for transgender plaintiffs. None mention that transgender people could still bring private cases that don’t go through the DOJ, if the EEOC grants a Notice of Right-to-Sue.

  • How many transgender people say they experience discrimination at work and what does it consist of?

o   This 2011 study of 6,456 transgender people reports that 90 percent of transgender people interviewed encountered some form of discrimination or harassment, and 47 percent of respondents reported they had experienced negative actions by their employers, such as job loss, or being denied a promotion.

  • How many estimated transgender people are there in the U.S.?

o   The Williams Institute estimated in 2016 about 0.6 percent of the adult population, or 1.4 million Americans identify as transgender. There is no official number.

  • Do any other laws protect transgender people at work?

o   The Equal Employment Opportunity Commission (EEOC), which was created under Title VII to enforce it, maintains that discrimination on the basis of gender identity is prohibited and represents people in such cases.

o   As with all employees, transgender people still have non-sex based workplace protections like the right to unionize and protection from wrongful termination.

Is it fact or fiction? Which outlet presents the most spin?

  • 22% Spun

  • 26% Spun

  • 39% Spun

  • 47% Spun

Fact Comparison

  • Facts in only 1 source
  • Facts in 2 sources
  • Facts in 3 sources
  • Facts in all sources

At present, there is no federal law explicitly prohibiting workplace discrimination against transgender people. (AP)

The Equal Employment Opportunity Commission, an independent agency that enforces civil rights law in the workplace, and other federal court decisions have found sex discrimination does include discrimination on the basis of gender identity and sex stereotyping — and that Title VII therefore bans anti-transgender discrimination as well. (Buzzfeed)

Five federal appeals courts have ruled that the Civil Rights Act’s bar on sex discrimination extends to gender identity, according to ACLU Director James Esseks, but the Supreme Court has not resolved the question of whether “sex” can mean sexual orientation or gender identity. (The New York Times)


The Washington Post doesn’t reference any court rulings or legal interpretations of Title VII besides Sessions’ memo. Considering the significance legal precedents have on U.S. court cases, including this information may broaden people’s understanding of transgender rights and how other courts have interpreted Title VII.  

A judicial decision provides a legal precedent that may affect a judge’s decision in similar future cases. According to the Library of Congress, “The decisions of the highest court in a jurisdiction create mandatory precedent that must be followed by lower courts in that jurisdiction. For example, the U.S. Supreme Court creates binding precedent that all other federal courts must follow. Similarly, intermediate appellate courts (such as the federal circuit courts of appeal) create mandatory precedent for the courts below them.”

The Trump administration has also raised the possibility of banning transgender people from military service. (AP)


The outlet doesn’t mention how the administration has “raised the possibility” of a ban. For example, while people may know of Trump’s tweets about transgender people in the military, they may not be aware that he issued a formal presidential memo to the Secretary of Defense and the Secretary of Homeland Security directing them to change the policy.

On August 25, the Trump administration announced that it was reversing the Obama administration’s decision to allow transgender people to serve until it determines that transgender service members won’t negatively affect the military, and outlined steps and deadlines for such a change. Four days later, Secretary of Defense Jim Mattis announced his intent to carry out President Trump’s transgender policy direction.

Balance

Get the full picture! Don’t buy into cherry-picked information.

The media’s slant:
  • Jeff Sessions’ memo rescinding the protection of transgender people from workplace discrimination is further proof that he and the Trump administration support discrimination against transgender people.
  • This change will hurt transgender people.
What the media doesn’t explore:
  • Ultimately, we don’t know Sessions’ intent in reversing the policy. He may not want to fight discrimination, but Sessions’ memo doesn’t necessarily mean he supports discrimination. There are many reasons to reverse a policy, including adhering to what he believes is the precise interpretation of a law as originally written.
  • The articles are missing data about what the effects of this interpretation of the law will actually be (such as number of legal cases, number of people affected by the change), so it’s hard to assess the actual effects of the changed policy.