DoJ advances trans rights while Department of Corrections steps back

By John Mack Freeman

On December 18th, Eric Holder announced that the Department of Justice now recognizes that Title VII of the Civil Rights Act bans discrimination on the basis of gender identity. Via a Department of Justice release:

Attorney General Holder informed all Department of Justice component heads and United States Attorneys in a memo that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination, reversing a previous Department of Justice position. Title VII makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s…sex,” among other protected characteristics.

“This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status,” said Attorney General Holder. “This 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.”

While this is an important advance for trans rights, the past two weeks have not been without setbacks. The First Circuit Court of Appeals reversed a previous ruling that stated that trans inmates were required to provide gender reassignment surgery when deemed medically necessary. Via Queerty:

The Gay & Lesbian Advocates & Defenders (GLAD) reports that Tuesday’s decision was divided, with a 3-2 majority. In her dissent, Circuit Judge Thompson wrote, “I am confident that I would not need to pen this dissent, over twenty years after Kosilek’s quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral. Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter’s protraction.”

In January of this year, the Court of Appeals ruled to uphold the finding of District Court Judge Mark L. Wolf that the DOC was violating Kokilek’s 8th amendment right to freedom from cruel and unusual punishment by denying her treatment through “pretense, pretext, and prevarication.”


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