Understanding Recent Federal Actions on Gender Identity Discrimination in Employment

Federal RegisterNew York City employment statutes continue to lead much of the country in the scope of protection provided for workers, particularly in areas like gender identity and gender expression. Employment laws and regulations at the federal level, however, seem to be moving in the opposite direction. Two events of the past few months affecting gender identity discrimination might offer an idea of the legal challenges ahead. The new administration in the White House has left in place an executive order (EO) issued by former President Obama dealing with sexual orientation and gender identity discrimination, but it has rescinded another EO that facilitated enforcement of that order. An unexpected announcement regarding transgender people serving in the military, meanwhile, has led to at least one lawsuit in Washington.

Federal Contracting

President Obama issued EO 13672 in July 2014. 79 Fed. Reg. 42971 (Jul. 23, 2014). The order amended existing prohibitions on various forms of employment discrimination by federal contractors, adding sexual orientation and gender identity as protected categories. Some provisions took effect immediately, while others took effect in 2015. Shortly after issuing that EO, the White House issued EO 13673, entitled “Fair Pay and Safe Workplaces,” which outlined procedures for ensuring compliance by federal contractors. 79 Fed. Reg. 45309 (Aug. 5, 2014); see also 81 Fed. Reg. 58807 (Aug. 26, 2016), 81 Fed. Reg. 58653 (Oct. 25, 2016). This EO required contractors to make disclosures regarding recent judgments or other adjudications under various statutes, as well as pending complaints.

The new administration issued EO 13782 in March of this year, revoking all or part of several prior EOs. 82 Fed. Reg. 15607 (Mar. 30, 2017). The revocation included the entirety of EOs 13673 and 13738. A federal judge had issued an injunction against EO 13673 shortly before it was to take effect. Assoc. Builders & Contractors of S.E. Tex. v. Rung, No. 1:16-cv-00425, mem. order (E.D. Tex., Oct. 24, 2016). By revoking the EO, the White House dropped all opposition to that lawsuit. It also removed what could have been its main tool in enforcing the EO on employment discrimination.

Military Service

On July 26, 2017, the president announced a ban on transgender people in the U.S. military. This announcement reportedly took almost everyone in Washington by surprise, partly since he made the announcement with no advance notice on the social media platform Twitter. It is not clear to what extent the government has moved forward on this, whether it has a plan in place, or even if this is a priority for military officials. A group of transgender servicemembers, however, are not waiting to see what happens next.

Five unnamed servicemembers have filed suit against the president and various other federal officials, seeking declaratory and injunctive relief. Doe, et al. v. Trump, et al., No. 1:17-cv-01597, complaint (D.D.C., Aug. 9, 2017). The plaintiffs argue that the policy announced by the president violates the Equal Protection and Due Process Clauses of the Fifth Amendment. They further argue that the government is estopped from banning them from the military “[b]y virtue of its June 2016 policy allowing transgender servicemembers to serve openly in the United States Armed Forces.” Id. at 13.

The gender identity discrimination lawyers at Phillips & Associates advocate for the rights of New York City employees, job seekers, and former employees in claims for gender identity discrimination and other unlawful practices. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with our experienced and knowledgeable team.

More Blog Posts:

U.S. Supreme Court Sends Gender Identity Discrimination Case Back to Appellate Court, New York Employment Attorney Blog, August 18, 2017

Appeal of Gender Identity Discrimination Lawsuit Takes an Unusual Turn, New York Employment Attorney Blog, August 4, 2017

Federal Caselaw Regarding Employment Discrimination Based on Sexual Orientation May Offer a Guide for Claims of Gender Identity and Gender Expression Discrimination, New York Employment Attorney Blog, July 7, 2017

Photo credit: U.S Federal Government [Public domain], via Wikimedia Commons.

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