Trump's Justice Department Continues Reversals on Trans Rights

(Bloomberg) -- Transgender Americans are getting whiplash as legal protections they secured under former President Barack Obama continue to vanish in the Trump administration.

Obama sidestepped Congress to achieve those rights, speeding things up in a drive for what he called inclusion and social progress. But that method has made it easy for President Donald Trump to hit the rewind button.

Transgender policy shifts since Trump's election victory have run the gamut, from bathroom use in schools to enlisting in the U.S. military. On Tuesday, the Justice Department rescinded an Obama-era memo that directed federal prosecutors to interpret the landmark Civil Rights Act of 1964 to bar workplace discrimination against transgender employees.

“Today marks another low point for a Department of Justice, which has been cruelly consistent in its hostility towards the LGBT community and in particular its inability to treat transgender people with basic dignity and respect," James Esseks, a director at the American Civil Liberties Union, said in a statement.

Abandoned Principle

Under the Obama administration, the Justice Department expanded the law beyond what Congress intended, abandoning a fundamental principle, according to Devin M. O'Malley, a spokesman for the agency in Washington.

"This Department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation," O'Malley said in an emailed statement.

In the memo, Attorney General Jeff Sessions said his predecessor, Eric Holder, erred in 2014 by declaring that Title VII of the Civil Rights Act, which prohibits sex-discrimination, applied to transgender employees.

"Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se," Sessions said in the memo.

The memo was held up by civil rights groups as further evidence of Trump undermining the rights of LGBT Americans. Sessions previously rolled back an Obama-era memo directing public schools to allow transgender students to use the bathroom for the gender they identify with.

And in July, Trump tweeted a ban on transgender soldiers in the military. That same month, Sessions filed a brief in an employment discrimination suit arguing Title VII shouldn't be used to protect employees from being fired for being gay or lesbian. The agency also filed a brief with the U.S. Supreme Court backing a Colorado bakery in a case over its refusal to make a wedding cake for a same-sex couple.

‘Jaw-Dropping Policy'

“The DOJ's jaw-dropping policy conflicts with years of interpretation from both the U.S. Supreme Court and federal circuit courts," Sarah Warbelow, legal director of the nonprofit Human Rights Campaign, said in a statement. "Sessions is openly directing the Department to ignore their responsibilities in protecting the civil rights of all Americans.”

Also this week, the Justice Department asked a federal judge to throw out a lawsuit by members of the armed forces challenging Trump's proposed ban on transgender soldiers, citing the court system's long history of “healthy deference" to the military on constitutional matters.

The government's primary argument in that case is that the lawsuit is premature, because the policy is still in the planning stage. But the agency urged the judge to defer to the political branches on issues of national defense on the grounds that courts have less competence to second-guess military decision-making.

Courts have long upheld the military's exclusionary rules while invalidating similar policies "in the civilian sphere," the U.S. Justice Department said in a filing Wednesday in federal court in the District of Columbia. For example, the courts allowed the Air Force to bar a Jewish officer from wearing a yarmulke while working as a psychologist in a base hospital, according to the filing.

“Of course, there are limits,” the U.S. said in Wednesday's filing. "No amount of deference could save the military's decision to exclude a race or religion from being considered."

"But outside those extreme examples, the military's policies are entitled to a ‘healthy deference' their civilian counterparts do not enjoy,” the government said.

Military Readiness

The National Center for Lesbian Rights, which is representing the plaintiffs in the case, said in a statement that transgender Americans are already being harmed because those who are looking to enlist aren't able to do so, and current transgender soldiers have been demeaned, stigmatized and denied health care.

Trump advocated for the ban saying it's needed to ensure military readiness and save money that is being spent on surgeries for transgender soldiers.

The case is Doe v. Trump, 17-cv-1597, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Erik Larson in New York at elarson4@bloomberg.net.

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Andrew Martin, Joe Schneider