On Wednesday, Attorney General Jeff Sessions’ Department of Justice delivered a one-two punch to the rights of transgender Americans. First, Sessions rescinded an Obama-era policy concluding that the Civil Rights Act bars workplace discrimination against transgender employees. Second, DOJ lawyers filed a motion to dismiss the first lawsuit against President Donald Trump’s trans troops ban—a snide, misleading directive that depicts transgender service members as disordered deviants. This is not normal behavior for an agency tasked with defending Americans’ civil rights. It is, rather, an indication that a dogmatic faction of political appointees has seized control of the Justice Department’s civil rights apparatus and has redirected it to turn back the clock on LGBTQ equality.
Sessions’ attack on transgender rights in the workplace constitutes a dramatic departure from both DOJ practice and judicial consensus. In 2014, then–Attorney General Eric Holder announced that the agency had taken the position that Title VII of the Civil Rights Act, which bars discrimination “because of sex,” forbids anti-trans employment discrimination. This development was inevitable. In 1989’s Price Waterhouse v. Hopkins, the Supreme Court ruled that sex discrimination encompasses sex stereotyping: adverse action against an employee for failing to conform to gender norms. Since then, myriad federal courts in addition to the Equal Employment Opportunity Commission have held that this rule protects transgender employees.
The logic here is straightforward. When an employer discriminates against transgender workers on the basis of identity, it is punishing those workers for failing to conform to the sex they were assigned at birth. Just as a company cannot fire a female worker for not being “feminine” enough, it should not be able to fire a transgender man for acting “too masculine.” Some federal courts, as well as the EEOC, also assert that anti-trans discrimination is “literally” discrimination because of sex: It is simply impossible to engage in anti-trans discrimination without taking sex into account—namely, the employee’s transition from one sex to another.
At the point, Title VII’s protection of trans employees is not controversial. In 2011, the 11th U.S. Circuit Court of Appeals affirmed this interpretation in a decision joined by arch-conservative Judge William Pryor. The court noted that since Price Waterhouse, “federal courts have recognized with near-total uniformity” that Title VII covers trans workers. Since then, that consensus has only grown. Yet Sessions’ memo asserts that the law “does not encompass discrimination based on gender identity per se, including transgender status.” To bolster this allegation, Sessions cites a dissent from a recent decision by the 7th U.S. Circuit Court of Appeals.
The attorney general claims “this is a conclusion of law, not policy.” But that is exactly backward. The law here is moving one direction; Sessions wants to move DOJ policy in another. His lurch into the past, which will prevent the agency from arguing in favor of transgender employees, is yet another attempt by the Trump administration to stack the deck against LGBTQ rights in court.
Hours after Sessions’ memo went out, the DOJ responded to a lawsuit filed by the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) against Trump’s trans troops ban. Its brief is both sloppy and sneering. First, the Justice Department argues that NCLR and GLAD’s plaintiffs don’t have standing to challenge the ban in court, saying they have no “imminent threat of future injury.” That is plainly incorrect. One plaintiff, Regan Kibby, is a transgender midshipman at the United States Naval Academy; another, Dylan Kohere, is enrolled in the Army ROTC at the University of New Haven. In order to enroll at a military academy or ROTC—and to remain in good standing—you must be eligible to enlist, even though you don’t actually enlist until you graduate.
Trump’s policy both outlawed transgender service altogether (starting March 23, 2018) and maintained a ban on transgender enlistment—a ban that was otherwise scheduled to be revoked this past July. Kibby and Kohere were admitted under the old rules, when the accession ban was set to expire. Trump’s indefinite extension of that ban, along with his total exclusion of transgender service members, immediately threatens Kibby and Kohere. Both men clearly have standing to sue.
Second, the DOJ essentially pretends that Trump’s ban on transgender military service is merely a proposal that might take effect pending further study, rendering it unripe for judicial review. Over and over again, the agency reframes the ban as an impartial investigation into trans troops’ fitness to serve. Here, for instance, is how the DOJ brief describes Trump’s actions up to this point: “The President issued a directive setting forth his policy decision to further study the issue of military service by transgender individuals, before the military departs from longstanding policies and practices.”
This is euphemistic nonsense. What really happened is that Trump tweeted an absolute ban on trans military service, then had his advisers turn those tweets into a memo. Yes, that memo asks the secretaries of defense and homeland security to study the issue and “advise” the president. But it directs the secretaries to advise Trump on how to implement the ban, not whether to implement it. The memo is clear: These secretaries must draw up a plan to exclude trans individuals from the military by Feb. 1, 2018, and the full ban “shall take effect on March 23, 2018.” The harm to trans troops is imminent and inevitable.
Third, and most offensively, the brief argues that it is “not irrational” for Trump to bar transgender individuals from enrolling in the military because being transgender is a mental disorder. This is a new low, even for Sessions’ DOJ. The American medical establishment has recognized for nearly a quarter-century that being transgender is not a disorder. Under the current consensus, gender dysphoria, a distressing feeling of gender incongruity, is a disorder—one that can be resolved through gender transition.
To find an authority to the contrary, the DOJ reaches back to the World Health Organization’s International Classification of Diseases, which classifies “transsexualism” as a “disorder of adult personality and behavior.” What the brief does not say is that this diagnostic manual was last updated in 1990. A new edition will be released in 2018—and it will almost certainly remove transgender identity from its list of disorders. The DOJ’s sole scientific justification for the trans ban is about to be abrogated.
Eight days before Wednesday’s onslaught, a DOJ attorney argued in federal court that the Civil Rights Act doesn’t protect gay employees. Weeks before that, the agency urged the Supreme Court to rule that bakers have a First Amendment right to refuse to serve same-sex couples. Trump has stacked the DOJ with foes of civil rights like Sessions, Eric Dreiband, and John Gore, and the predictable result has been a race to strip LGBTQ people of their rights. Just one year ago, the Justice Department was a powerful champion of equal rights. It is quickly becoming LGBTQ Americans’ staunchest opponent.
