I had a very light, easy day planned yesterday. I was out of the office to attend a continuing legal education workshop offered by my former firm. I planned to just sit and absorb generic information about the latest in labor and employment law, when a colleague announced at the end of one session that Mr. Sessions had just declared that Title VII does not protect transgender employees from discrimination. So, now I have some things to say.

What Does Title VII Say (on Its Face)?

By way of background, Title VII of the Civil Rights Act of 1964 (“Title VII”) proscribes two primary employment practices (and I am summarizing except for where you see quotation marks):

1. Discriminating against an applicant or employee with respect to the terms and conditions of employment (e.g., hiring/refusal to hire; compensation; terms, conditions, or privileges of employment; termination) “because of such individual’s race, color, religion, sex, or national origin.”

2. Limiting, segregating, or classifying applicants or employees in any way that would deprive them of employment opportunities or otherwise adversely affect their status as an employee “because of such individual’s race, color, religion, sex, or national origin.”

See 42 U.S.C. § 2000e-2(a). Title VII also proscribes retaliating against an employee for making a charge of discrimination or otherwise testifying, assisting with, or participating in enforcement proceedings. See 42 U.S.C. § 2000e-3(a). But we shan’t discuss retaliation, today. Just discrimination.

What Does Title VII Mean (according to Courts)?

Alright, so notice that the statute says “sex” and not “sexual orientation” or “gender identity.” On its face, that would suggest that Title VII only prohibits, for example, an employer from discriminating against a woman [in favor of a man]. But we no longer read the statute that narrowly because the Supreme Court has looked at this issue at least twice. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court held that Title VII’s prohibition against sex-based discrimination also prohibited discrimination based on gender stereotypes – as in, when the employee at issue, there, was told that she could not be promoted unless she walked, talked, and dressed “more femininely.” And then, in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Court held that same-sex harassment also constitutes prohibited sex discrimination under Title VII. The Supreme Court has not yet addressed transgender discrimination.

In addition, some Courts of Appeals have held that Title VII prohibits employment discrimination on the basis of gender identity, including status as a transgender person. See, e.g., Chavez v. Credit Nation Auto Sales, L.L.C., 2016 WL 158820 (11th Cir. Jan. 14, 2016) (reversing summary judgment in favor of the employer and remanding for retrial in the district court on whether gender bias was a motivating factor in the termination); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (applying Hopkins to hold that Title VII prohibited discrimination against transgender employees based on gender stereotyping). See also Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (9th Cir. 2000) (citing Title VII case law and holding that a transgender loan applicant stated a claim under the Equal Credit Opportunity Act by alleging that his loan was denied because he was biologically male but was dressed in traditionally female attire); Schwenck v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (citing Title VII case law and holding that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a “man who failed to act like one”).

What Does Title VII Mean (according to the Attorney General)?

Statutory interpretation can be difficult because we are often looking at a constitutional provision or a statute that was drafted dozens and dozens of years ago in a completely different context, and are trying to figure out what it should mean now, in the current context. (For example, we’ll leave, for another day, the conversation about what guns looked like when the Second Amendment was drafted.) How do we decide what a law that was implemented in 1964 means in 2017?

Well, that’s generally the problem of the courts. But sometimes, an administrative agency decides that it has an opinion about how a seemingly-ambiguous statute should be interpreted. And sometimes we listen, and sometimes we don’t (and I’ll discuss that in a minute, below).

With respect to Title VII, on December 15, 2014, then-Attorney General Eric H. Holder wrote a memorandum addressing his office’s interpretation of Title VII:

“…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.”

To reach that conclusion, Attorney General Holder reviewed the language of the statute, Supreme Court and Court of Appeals decisions (including those noted above), and administrative guidance, including the Office of Personnel Management’s 2011 guidance indicating 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,” and the U.S. Equal Employment Opportunity Commission’s 2012 ruling that discrimination on the basis of gender identity is discrimination based on sex, and President Obama’s 2014 Executive Order prohibiting discrimination on the basis of gender identity in federal employment and government contracting (citations omitted). It is noteworthy that Attorney General Holder seemed to recognize the limitation of his memorandum as unable to “prescribe the course of litigation or defenses that should be raised in any particular employment discrimination case”; that is, the purpose of the memorandum was to clarify the Department of Justice’s position on the statute, which would then be interpreted by the courts.

We should read Attorney General Sessions’ October 4, 2017 memorandum in the same way, whether he does or not. On the one hand, Attorney General Jefferson B. Sessions believes that Title VII only addresses discrimination in contexts where one gender is treated differently from another:

“Accordingly, 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 trangender status. Therefore…this memorandum…hereby withdraws the December 15, 2014, memorandum…”

On the other hand, he was able to reach that conclusion while acknowledging that certain types of discrimination “take account of the sex of employees” – which, by the way, sounds exactly like sex-based discrimination, to me – but do not impose different burdens on similarly situated members of each sex. I think it’s going to take a case where a transgender man and a transgender woman at the same employer are treated differently for this administration to even consider whether this position is absurd. But we shall see.

Do We Care What the Attorney General Thinks about What Title VII Means?

We all know how statutes get here, yes? The legislative branch legislates (makes laws) and then the judicial branch judges (interprets). The JUDICIAL BRANCH interprets. It decides what a law means and – really, just the Supreme Court – decides whether a law (or interpretation of a law) is constitutional. Generally. But every once in awhile, the executive branch – which is really just supposed to enforce the law that the legislative branch writes and the judicial branch interprets – decides that it has some feelings about the law; that is what the Attorneys General did in the memoranda we discussed above. And that’s totally fine, especially where the law is ambiguous. And it’s really fine because we have a line of jurisprudence that tells us what to do with the executive branch’s musings about what a law means. That line of cases addresses the idea of judicial deference.

Generally, to determine what a law means a court will look to the decisions of the courts above it, or to prior decisions from its own court, or to decisions of its peers; so, if the Seventh Circuit were interpreting a law, it would look to the Supreme Court, to prior decisions in the Seventh Circuit, and if necessary, to Court of Appeals decisions in other Circuits. When a court is trying to “determine what a law means,” it is really trying to figure out what Congress intended by what it drafted. And no, they can’t pick up the phone and ask. They just have to figure.

But judicial deference is what occurs when a court decides that another party – other than a court – knows what Congress meant better than the court does. In Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) – the source of our “Chevron doctrine” – the Supreme Court held that if Congress’ intent is not clear (i.e., if a statute is silent or ambiguous on a particular issue), the Court can look to the applicable agency’s interpretation of the statute and decide whether that interpretation is “based on a permissible construction of the statute.” Id. at 843. (When I say “applicable agency,” that just means the court is looking for statutory interpretation from the agency that is an expert on the statute; so, for example, it is not looking to the Environmental Protection Agency for its interpretation of Title VII, we are looking to the Department of Justice.)

So, what would the Supreme Court say about the latest memorandum? We don’t really know, yet, and may not know for awhile because I do not see any Title VII transgender discrimination cases on its docket for the 2017-2018 term. An educated guess, though? Well, I’m just assuming that Justices Breyer, Ginsburg, Kagan, and Sotomayor would conclude that Title VII did prohibit discrimination on the basis of gender identity. I’m assuming that Justice Thomas would not; and I’m hesitating, but I could probably conclude the same of Justices Alito, Roberts, and maybe Kennedy. But I am honestly not so sure about Justice Gorsuch. I do not necessarily think he would be swayed by the morality of the issue; rather, I suspect that his conclusions about the memorandum would stem from his disdain for the Chevron doctrine. I have seen this summarized in two other places, so I’m not going to attempt to recreate that, here (just go here and here). Suffice it to say that Justice Gorsuch has said that “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.” See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). In other words, the entire purpose of the system of checks and balances fundamental to our government is that each branch has its own responsibility with respect to each law – the legislature drafts, the judiciary interprets, and the executive branch enforces. And they don’t get to switch roles. And the judiciary (the Supreme Court) is the perfect body to interpret laws because it, with its lifetime appointments and such, is supposed to be the most insulated from the political fluctuations characteristic of the other two branches. So, deferring to the interpretation of a branch of government that is not supposed to be interpreting all is both inappropriate from a constitutional perspective and frightening from a moral perspective [especially under this administration].

What Do I Think?

Well, that doesn’t matter. Honestly. (But let me take this moment to say that I am speaking for myself and not for my employer on this blog…Although, my employer will speak about this shortly, and I do not believe our views will differ.)

The most important thing for me to say is that even if you find no comfort in my explanation about how much to ignore the latest memorandum, you, as an employer, can decide to offer more protection than the law does. If the Supreme Court pronounced tomorrow that Title VII does not prohibit gender identity discrimination or if Congress amended the statute to specifically exclude protection on the basis of gender identity to resolve any statutory ambiguity, you could prohibit it by policy.

You should prohibit it by policy. In my opinion, the core of all the anti-discrimination laws is that the way we treat an employee should be based on their conduct and qualifications, and not on their identity. In other words, it is absolutely appropriate to discipline a person for their poor performance or misconduct; identifying as a gender different from that as which you were born is not misconduct. It may be inappropriate to dress provocatively (e.g., in a scantily-clad manner); it is not inappropriately provocative to dress in clothing stereotypically worn by the gender as which you identify and not the gender as which you were born.

Just my two cents, mind you.

At any rate, I’ll keep you posted if we hear anything else about this area of the law. This is super important.