Attorney General Jeff Sessions issued new rules on Thursday, Oct. 5, that exclude transgender people from anti-discrimination policies based on sex.
Sessions’ mandate redefines language in the Civil Rights Act of 1964 that protects against workplace discrimination based on sex. “Sex” no longer extends to individuals who identify as transgender.
“Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender states,” Sessions said in a memo distributed by the Department of Justice (DOJ).
Sessions said in the memo that the order does not authorize discrimination against transgender people.
“The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity,” Sessions said.
This ruling follows a July attempt to exclude gays based on a similar interpretation of the Civil Rights Act. Sessions then argued that “sex” does not protect against discrimination based on sexual orientation. The DOJ filed a brief in an open federal case, Zarda v. Altitude Express, where Zarda alleged that the company discriminated against him for his sexuality, according to The New York Times.
Dr. Michael P. Fix, assistant professor in the Department of Political Science at Georgia State, said this order carries the same authority as the 2014 decision it reverses.
“As head of the DOJ, the Attorney General has broad discretion in interpreting federal law relevant to his department,” Fix said.
However, the Attorney General can only interpret legislation where there is ambiguity, according to Fix.
Sessions is bound by lower-court decisions, such as an April 4 Court of Appeals’ ruling in Hively v. Ivy Tech that bars discrimination on the basis of gender identity.
“However, the language in the memo following that caveat implies that the DOJ is potentially going to challenge those decisions in the future,” Fix said.
Checks on Attorney General
While the effects of the decision are uncertain, Fix said its impacts will likely be limited in three ways.
First, demonstrated by Hively v. Ivy Tech, the U.S. Courts of Appeals are split on interpretations of “sex.” In courts where the Civil Rights Act has been interpreted to include gender identity, the DOJ must accept that interpretation, according to Fix.
Second, Fix said Congress can amend the Civil Rights act to explicitly protect or exclude transgender individuals.
“The former would obviously be unlikely unless the Democrats achieved majorities in both houses of Congress in the midterms,” Fix said.
Finally, the Supreme Court could invalidate Sessions’ memo by providing a national interpretation of the Civil Rights Act, according to Fix.
“While the Court does have a conservative majority, one of those justices, Anthony Kennedy, has been very supportive of the rights of homosexuals,” Fix said. “So it is not outside the realm of possibility that he could side with the Court’s liberal wing should a hypothetical case arise in the future.”
Mayoral Candidate on Memo
Cathy Woolard, Georgia’s first openly-gay elected official, ties for fourth in the race for Atlanta mayor, according to the most recent polls conducted by SurveyUSA. Woolard said Sessions’ recent mandate reflects a long practice of targeting the LGBTQ+ community.
“[It’s] a shame he continues to pick on people he doesn’t like or understand,” Woolard said.
As City Council President, Woolard passed civil rights legislation that protects against discrimination in employment based on all protected federal classes, including sexual orientation and gender identity.
Woolard advocated increased legislation that protects LGBTQ+ individuals on a local level. She also encouraged citizens to challenge an administration consistent in its efforts to “take rights away from people,” according to Woolard.
“To be perfectly frank, I feel like our community is sort of relaxing into accomplishments that have happened in the past like marriage equality,” Woolard said. “I think people need to stay vigilant.”
The State Way
Meanwhile, students on the Dunwoody campus are trying to stay as far from discrimination as possible.
Student Government Association (SGA) senators are in the process of passing a bill for transgender students, which, according to the author, Sen. Alicia Watson, would provide a new column on the student roll sheet.
The inspiration for the bill came after a Georgia State student allegedly wanted to go by a different name, but the professor refused due to lack of the necessary documents.
At an open forum during the introduction of the new bill, Sen. Watson said she wants to stand by the side of students who are in the process of transitioning that may not have the proper documents, but still have the right to be called another name if that’s what they prefer. This bill, she said, will also benefit international students who have a difficult name to pronounce.
“Students who are either transitioning or maybe an international student might prefer to have a different name. I don’t have the documents, but I’m still transitioning. This bill will allow me to say, ‘Hey, I’m transitioning. This is what I prefer, this is what I identify as, and this is what I want to be called. Can you please comply and call me that?’” SGA Dunwoody Speaker of the Senate, Terry Fye, said.
Iv Fischer, a sophomore at the Atlanta campus of Georgia State and a transgender woman, said that, while she understands Sessions’ interpretation of “sex,” she worries about the memo’s impact on the transgender community.
“Sex and gender are always misconstrued. Technically, transgender is a gender identity, it doesn’t have to do with sex,” Fischer said.
However, she added that the new rule will only increase feelings of transphobia.
“If people hear another reason for transgender people to not be visible or not be included in something, it’s just going to continue the hatred and continue the discrimination,” Fischer said.
Fischer said she has never felt uncomfortable on Georgia State’s campus and feels respected by students and faculty.
Georgia State University President Mark Becker affirmed Georgia State’s support for international students in a campus broadcast on Jan. 30, after Trump signed an executive order denying citizens from seven countries access to the U.S. The university has not released a statement on Sessions’ memo.
Fischer said school officials and people with authority should speak out on issues that affect minority groups like transgender students.
“Silence in general is dangerous. It can’t just be people that are affected by these things talking about [the memo],” Fischer said. “It has to be people that aren’t affected by these things who are in higher positions that can help people like me to elevate themselves.”