UPDATE: Justice Department reverses stance on policy protecting transgender workers

10/05/17 04:48 PM EDT

By Jacob Passy

For transgender Americans, workplace discrimination is a major problem

Attorney General Jeff Sessions has issued a memo saying that the Justice Department will no longer argue that transgender people are protected against workplace discrimination by existing civil rights law.

The memo reverses an Obama administration policy (https://www.documentcloud.org/documents/4067437-Sessions-memo-reversing-gender-identity-civil.html) that said bias against transgender individuals was a form of sex discrimination, thus entitling them to protections laid out in Title VII of the Civil Rights Act of 1964. "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 status," Sessions wrote.

The Justice Department will now take this position in pending and future cases, with the exception of cases where lower-court precedent says otherwise, as first reported by Buzzfeed (https://www.buzzfeed.com/dominicholden/jeff-sessions-just-reversed-a-policy-that-protects?utm_term=.lszjrrDJ2#.nuxxzzJvb).

Currently, there is no federal law explicitly prohibiting discriminating against transgender people in the workplace. However, multiple federal court cases have interpreted bias against transgender individuals as a form of sex discrimination.

Sessions' memo is the Trump administration's latest indication that it opposes civil rights policies enacted in the Obama era. In July, the Department of Justice on filed an amicus brief (https://www.lambdalegal.org/in-court/legal-docs/ny_zarda_20170726_doj-amicus-brief) that argued Title VII did not cover discrimination based on sexual orientation.

And in August, President Trump announced his plan to ban transgender Americans from serving in the military (http://www.marketwatch.com/story/trump-signs-memo-banning-transgender-people-from-joining-military-2017-08-25). That announcement reversed a policy ushered in by the Obama administration in 2016 to lift the longstanding ban on transgender people from the military. The 2016 change immediately applied only to those currently serving -- the government had set July 1, 2017 as a target date for transgender individuals to begin being able to enlist.

Defense Secretary James Mattis subsequently said transgender troops already enlisted could continue to serve (http://www.marketwatch.com/story/mattis-transgender-troops-can-keep-serving-pending-review-2017-08-29), pending a review -- the RAND Corporation, a nonprofit think-tank that does research for U.S. military, estimated that between 1,320 and 6,630 transgender people are serving.

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Even before the Trump administration's policy revisions, transgender Americans across the country faced significant hurdles to employment free from discrimination, though progress has been made.

Employment nondiscrimination laws that include protections for transgender people have been enacted in 20 states and the District of Columbia. Many cities and other municipalities also have protections on the books. Roughly half of the U.S. population now lives in a jurisdiction with explicit protections for transgender individuals, said Harper Jean Tobin, director of policy at the National Center for Transgender Equality.

While Tobin said that the picture in the workplace for transgender people has improved, having legal protections does not inherently equate to avoiding bias. "The real life impact of the protections for transgender people in the workplace has certainly been uneven across the country," Tobin said. "We've seen many companies large and small work to do the right thing. But we still see transgender people reporting discrimination in the workplace."

More than one-in-four transgender people (http://www.transequality.org/issues/employment) have lost a job due to bias, according to the National Center for Transgender Equality.

Incidents of discrimination are experienced at even higher rates by transgender people of color. A 2009 report co-authored by the National Gay and Lesbian Task Force and the National Center for Transgender Equality found that 97% of transgender people had been mistreated at work in some way, including being denied access to an appropriate bathroom or being removed from contact with clients.

And workplace discrimination can have a serious impact on transgender workers' wellbeing, including their mental health (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2867471/). It is one of the reasons why transgender individuals are twice as likely as the general population to be unemployed or to live in poverty, said Jillian Weiss, executive director of the Transgender Legal Defense and Education Fund. "They have difficulty with finding housing and maintaining stability in their lives," she said.

Rolling back protections for LGBT people appears could have an impact, as comfort with being out in the workplace has worsened in America. A study conducted by Out Now, an LGBT consulting firm based in the Netherlands, found that the percentage of LGBT individuals in the U.S. who were out to everyone at work dropped from 44% in 2010 to 38% in 2015. The U.S. was the only country studied where this figure declined.

And employment discrimination is just one issue affecting the well-being of transgender people. In 2016, 22 transgender individuals were killed in the U.S (http://www.hrc.org/resources/violence-against-the-transgender-community-in-2017)., the highest number ever recorded, according to the Human Rights Campaign. So far, 15 transgender people have been fatally shot or killed by some other means in 2017. Most of those killed were transgender women of color.

For transgender people who face discrimination, Tobin said those who can afford it should seek legal recourse or get in touch with an LGBT legal assistance organization. Additionally, they should file an equal employment opportunity complaint at the local, state or federal level if possible.

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As for employers looking to promote a safe environment for their transgender staff, it is important to institute or update policies and practices that are inclusive -- the Society for Human Resource Management has a comprehensive guide to this effect (https://www.shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/managinggendertransitionintheworkplace.aspx). For instance, dress codes should avoid gender stereotypes and allow workers to dress according to their full-time gender express. Additionally, companies should put procedures in place whereby workers can update their personnel records easily if they begin to transition genders.

Managers should make sure they familiarize themselves about the language of transgender identity and promote understanding across their teams. That includes everything from making the change in a transgender worker's employment records to reflect a new name or the correct gender as smooth as possible to instituting a code of conduct in meetings and on workplace communications tools like Slack.

"The most important thing they can do is send a clear message across the company that they believe in equal opportunity and that they support their transgender employees," Tobin said.

-Jacob Passy; 415-439-6400; AskNewswires@dowjones.com

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10-05-17 1648ET

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