Published: Sun, October 08, 2017
Global Media | By Garry Long

US Attorney General Jefferson Sessions Issues New Guidance On Transgender Employees

US Attorney General Jefferson Sessions Issues New Guidance On Transgender Employees

At the instruction of President Trump, Attorney General Jeff Sessions has released a memo to all government departments and agencies that provides guidance as to how federal laws pertaining to religious liberty protections should be interpreted. In a memo to the nation's federal prosecutors, Sessions says the law bars discrimination between men and women but does not extend to gender identity. And the Justice Department in an upcoming Supreme Court case has taken the side of a baker in Colorado who declined to make a wedding cake for a same-sex couple (Disclosure: so has the Reason Foundation). A simple claim of a violation of religious freedom would be enough to "override concerns for the civil rights of LGBT people and anti-discrimination protections for women and others". "This is a conclusion of law, not policy".

"There will be numerous interpretations of what that religious freedom test would be and how the license to discrimination would be applied across particular agencies, grants and contracts", Stachelberg says.

"We have seen public officials criticized for their religious beliefs, elected representatives who have called for a "religious test" for public office, and marketplace discrimination against religious people who own and run businesses according to the dictates of their individual consciences", noted Bob Goodlatte, chairman of the House Judiciary Committee.

Numerous current conflicts in the religious sphere concern civil rights for lesbians, gays and transgender people _ for instance, whether religious organizations can refuse to employ people due to their sexual identification.

A Justice Department official said Thursday the department hasn't decided if those grants will also be tied to immigration policies.

Similarly, the Justice Department last week came out against the Equal Employment Opportunity Commission (the federal agency tasked with enforcing Title VII) in the U.S. Court of Appeals for the Second Circuit in the case of Zarda v. Altitude Express. Sessions said the civil rights law does not mention questions of gender identity, so the legal protections don't apply. The Justice Department and the EEOC took opposite sides in their respective amicus briefs as to whether sexual orientation should be considered sex discrimination under Title VII. Here, the administration has weighed the free exercise rights of employers against the rights of employees to be free from sex-based discrimination, and has decided that the former is more important than the latter.

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"Most of what it actually says is bland and general", said Doug Laycock, a professor at University of Virginia Law School.

In the memo to Justice Department attorneys, Sessions urged his subordinates to keep in mind the primacy of religious freedom in actions such as drafting rules within the administration. The document has already been criticized by its opponents as oppressive to women and the LGBT community.

In essence, it says that religious rights trump civil rights. Religious social service providers, for example, would be able to use federal funds to discriminate against LGBTQ people in hiring and services.

Cardinal Daniel DiNardo of Galveston-Houston, president of the U.S. Conference of Catholic Bishops, and Archbishop William Lori of Baltimore, chair of the U.S. bishops' religious liberty committee, said in a statement that the new rule "recognizes that the full range of faith-based and mission-driven organizations, as well as the people who run them, have deeply held religious and moral beliefs that the law must respect". "This is a conclusion of law, not policy", Sessions wrote in a memo as he dusted off his "No Trans Allowed" sign and hung it in the hollowed-out southern magnolia he lives in on the South Lawn.

The National Center for Transgender Equality is pushing back against Sessions' analysis of the law.

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