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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