We all know it’s illegal for employers to discriminate based on a person’s race, color, religion, sex, or national origin. Title VII of the Civil Rights Act of 1964 made that distinction.
Last week, U.S. Attorney General Jeff Sessions released a memo clarifying that the word “sex” in Title VII does not refer to “gender identity,” but actual biological sex (male or female).
Seem unnecessary? Well, the original intent and interpretation of the word “sex” was applied with integrity and consistency for decades. But, back in December 2014, then-U.S. Attorney General Eric Holder released a memo stating the opposite. He contended that Title VII’s exclusion of sex-based discrimination somehow included discrimination based on “gender identity” – the sex a person desires to be or believes him or herself to be.
The Department of Justice is supposed to enforce established law. It does not have the authority to inflate the language of any law to mean something beyond what Congress provided.
“Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action,” said DOJ spokesperson Devin O’Malley in a recent statement. Holder’s interpretation assuredly went beyond the scope of the Civil Rights Act. And Sessions has simply gone back to the basics while dispelling the previous administration’s erroneous interpretation, or exaggeration.
Holder’s 2014 embellishment of Title VII came years after President Barack Obama’s pronouncement that the DOJ would no longer enforce the Defense of Marriage Act, the legal prohibition on federal recognition of same-sex marriage. His stated reason for instructing the DOJ to act with such gross negligence was his personal claim of its unconstitutionality and belief that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”
There is no telling how much of a role the president’s statements and his DOJ’s refusal to do its job played in influencing the minds of the American people. Four years later, came the Obergefell v. Hodges Supreme Court ruling, which fundamentally redefined marriage and produced a seismic shift in the moral mindset of the nation as a whole.
In actuality, the former president and head of the DOJ did not have the authority to refuse to enforce established law (such as DOMA), nor did they have the power to rewrite law (such as Title VII of the Civil Rights Act of 1964). And neither does the current administration. If Sessions continued to perform his duties within the framework claimed by Holder’s 2014 memo, he too would be acting unethically, far outside of his established role as U.S. attorney general.
To be clear, Session’s memo does not affect any other laws instituted by Congress that specifically identify “gender identity” or “transgenderism” and similar terms.
Session’s memo further clarified that the Supreme Court has identified the critical issue as Title VII’s text indicates, whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.
There is no third or fourth sex that is equally protected under this law.
The bottom line: Session’s memo has overturned the December 2014 memo released by Holder and the Obama administration and returned to the original intent of the law.
We can be grateful that we now have an attorney general who is actually doing his job.