On Thursday, the Department of Justice released a memo signed by Attorney General Jeff Sessions that reversed an Obama-era legal opinion that had said Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of sex, includes gender identity. In other words, the Trump administration does not believe that the country's most powerful federal anti-discrimination law doesn't apply to trans people.
"Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se," reads the memo. "This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress."
The decision to reverse course on sex discrimination regarding gender identity flies in the face of lived reality for trans people, who daily must navigate a society obsessed with their genitals. At the heart of every anti-trans argument presented by both conservatives and some radical feminists who exclude trans people is the false idea that having a penis makes someone a man, and having a vagina makes someone a woman. That position is the position of the Trump administration, as it has made clear time and time again, though it's laid especially bare by Sessions's memo.
The memo seems to assert that sex and gender are different things under the law. " Gender" is a set of social behaviors that had previously been tied to a person's sex, while " sex" is commonly understood to mean the physical sex traits inherent to our bodies. Sex says that women have breasts and vaginas, while gender would be the notion that only women wear dresses. But sex traits are not universal and cannot be divided neatly into simply "male" and "female" for everybody, and trans people themselves can modify their sex traits through a simple hormone replacement therapy prescription. ("Gender identity," it should be noted, is simply a person's inner sense of their own gender, regardless of their assigned sex at birth.)
When it comes to how people actually live and think, however, the separation of the terms hardly makes sense. "While the sex/gender distinction may serve a purpose in more nuanced or theoretical discussions on the subject, in everyday life most people do not make this distinction, especially when it comes to sex based discrimination," explained trans feminist writer Julia Serano earlier this year. "That is, most people use the terms 'sex' and 'gender' synonymously. Whenever a man speaks over me or down to me, he's not thinking: 'Well, this person appears to me to be biologically female, as opposed to merely identifying as a woman, so therefore I will be misogynistic toward her.' Rather, he simply sees a woman/female (same thing in his eyes), and treats me accordingly."
The courts have agreed with this view. Five different federal circuits have now determined that Title VII sex discrimination protections apply to gender identity, which contradicts Sessions' claim that his memo is a "conclusion of law" and not the highly motivated political move it truly is. At the basis of the recent court shift is the precedent set by the Supreme Court decision in 1989's Price Waterhouse v Hopkins. According to an Equal Employment Opportunity Commission summary of the case:
Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to "walk more femininely, talk more femininely, [and] dress more femininely" in order to secure a partnership… The Court found that this constituted evidence of sex discrimination as "[i]n the... context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." The Court further explained that Title VII's "because of sex" provision strikes at the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes."
Further rulings have held that such sex stereotyping applies in cases of trans employment discrimination. For instance, 17 years ago the the Ninth Circuit ruled that a trans plaintiff's claims about being discriminated against for transitioning were covered under Title VII. Since then, according to the EEOC, more than 20 other cases have backed the claim that trans discrimination is sex discrimination.
Though my state of Maine currently has employment protections on the books, I wonder how a federal court would handle a case if I was fired from a job for being transgender. All of my ID, state driver's license, US passport, and birth certificate list me as female. How could an employer believe I am male and fire me for being trans without taking sex into account? Either I am a man who doesn't conform to sex stereotypes (and therefore protected under Title XII), or I am a woman with the legal right to be treated as female under the eyes of the law. Either way I'm entitled to the same legal protections as any other person under the law. Sessions's memo essentially renders me neither male or female under the law in order to allow employers to fire me for being trans.
It remains to be seen how the current national legal battles will affect the push for legal recognition for nonbinary people. Currently Oregon and Washington DC are the only places in the country where it's possible to obtain a legal ID that is marked neither male nor female (displaying an "X" under sex). How would the legal conditions currently being pushed by the DOJ apply to those who are not legally male or female?
Once again the Trump administration has struck a major blow against the mere existence of transgender Americans. The trans community already struggles with rampant unemployment, partially due to lack of clear employment and housing protections under the law. At the basis on American capitalism lies the assumption that everyone should get and hold a job to become a productive member of society. Trans people are already marginalized enough on this front without a hostile Justice Department standing on their necks.
Follow Katelyn Burns on Twitter.