Employment discrimination based on gender identity is forbidden under the Civil Rights Act, the U.S. Justice Department said Thursday, announcing a change in the way it will litigate claims.

The department will no longer take the position that the “prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination),” Atty. Gen. Eric H. Holder Jr. said this week in a memo to U.S. attorneys.

It’s a reversal of a position the department took as recently as 2006, the memo says.

“This important shift … will help to foster fair and consistent treatment for all claimants. And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans,” Holder said Thursday in a statement.


The change in position affects public employees. The Justice Department doesn’t have the authority to sue private employers over discrimination claims.

Holder said he based his new interpretation on the text of the act, Supreme Court case law and recent developments in jurisprudence.

In 2012, the federal Equal Employment Opportunity Commission set a precedent when it ruled that a transgender woman could proceed with a complaint alleging gender-based job discrimination.

In that case, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives had accepted Mia Macy for a job pending a background check. Then she was told the job had been eliminated because of budget cuts. Later, she learned the job had been filled.


Last July, President Obama signed an executive order prohibiting discrimination against federal workers who identify as transgender and barring federal contractors from discriminating against employees based on sexual orientation or gender identity.

“In too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fire-able offense,” Obama said at the time. “I firmly believe it’s time to address this injustice for every American.”

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