As explained in Attorney
General Holder’s Memorandum, this rationale is based not just on Price Waterhouse gender stereotyping,
but
encompasses
discrimination based on gender identity, including transgender status. The most
straightforward reading of Title VII is that discrimination "because of
... sex" includes discrimination because an employee's gender identification
is as a member of a particular sex, or because the employee is transitioning,
or has transitioned, to another sex. As the Court explained in Price
Waterhouse, by using "the simple words 'because of,' ... Congress meant to
obligate" a Title VII plaintiff to prove only "that the employer
relied upon sex-based considerations in coming to its decision." 490 U.S.
at 241-242. It follows that, as a matter of plain meaning, Title VII' s
prohibition against discrimination "because of ... sex" encompasses
discrimination founded on sex-based considerations, including discrimination
based on an employee's transitioning to, or identifying as, a different sex altogether.
Although Congress may not have had such claims in mind when it enacted Title
VII, the Supreme Court has made clear that Title VII must be interpreted
according to its plain text, noting that "statutory prohibitions often go
beyond the principal evil to cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of our legislators by
which we are governed." Oncale v. Sundowner Offshore Servs., 523 U.S. 75,
79 (1998).
The affirmative action regulations were
amended by placing “sexual orientation, gender identity,” between “sex” and “
or national origin” in several places, but most especially in 41 C.F.R. part 60-1.
Contractors satisfy
this obligation by including the updated Equal Opportunity Clause in new or
modified subcontracts and purchase orders, ensuring that applicants and
employees are treated without regard to their sexual orientation and gender
identity, and by updating the equal opportunity language used in job
solicitations and posting updated notices.
The terms were also
inserted in the provision prohibiting discrimination or preferences. The terms were not inserted into other
regulations governing the content of affirmative action plans and the
requirements to collect and analyze data:
This final rule makes
no changes to the provisions governing reporting and information collection set
forth at 41 CFR 60–1.7 and 60–1.12(c). The obligations updated by this final
rule are separate from the additional affirmative action requirements set forth
in 41 CFR parts 60–2 and 60–4 that comprise the contents of contractors’
written affirmative action programs. No changes are being made to the written affirmative
action program requirements of 41 CFR part 60–2, or the affirmative action
requirements contained in § 60– 4.3(a)(7) of 41 CFR part 60–4, and thus those
programs will continue to be limited to gender, race, and ethnicity. While the
terms ‘‘sexual orientation’’ and ‘‘gender identity’’ will now appear in two
sections within part 60–2 that include the full list of protected bases (in §§
60–2.16(e)(2) and 60–2.35), the final rule does not require contractors to set
placement goals on the bases of sexual orientation or gender identity, nor does
it require contractors to collect and analyze any data on these bases. Section
60–2.16(e)(2) simply states that placement goals for women and minorities under
the existing regulations may not be used as a basis for discrimination on one
of the bases protected by EO 11246, including sexual orientation and gender
identity.
The final rule and the Executive Order do not
create exemptions for religious organizations which are also federal
contractors, except to permit them to favor members of their own religion. Because Congress has refused to enact
non-discrimination legislation which covers gender identity or sexual
orientation, the Executive Branch has elected to prohibit discrimination on
these basis without legislative support.
