Information on Legal Protections for LGBTQ Workers Vanishes from Federal Government Websites

Legal protections for workers who are transgender or gender-nonconforming are, at best, a patchwork around the country. New York City gender identity discrimination attorneys can choose between city and state law when preparing a claim for gender identity or gender expression discrimination. In places where people must rely on federal law, their options may be less clear. An executive order (EO) issued during the Obama administration extended legal protections against gender identity discrimination to civilian government employees and employees of government contractors. That EO remains in effect, but the new administration has chipped away at its protections. This includes both substantive law and publicly available information. A report published in November 2019 by the Web Integrity Project (WIP) examines how the administration has removed information about LGBTQ legal protections from government websites, even when those legal protections remain in place.

The Equal Employment Opportunity Commission (EEOC) ruled in 2012 that the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 covers gender identity and gender expression. The agency cited precedent recognizing “sex stereotyping” as a type of sex discrimination, and found that discrimination on the basis of a complainant’s gender identity was discrimination based on her sex. Most federal courts have not reached this conclusion. The U.S. Supreme Court is expected to rule on the question in 2020.

President Obama issued EO 13672 on July 21, 2014. The order amended two earlier EOs. EO 11246, signed by President Johnson in 1965, established rules against discrimination by employers that contract with the federal government. EO 11478, signed by President Nixon in 1969, addressed discrimination in the federal civilian workforce. EO 13672 added gender identity protections to both of the earlier EOs. Various executive agencies implemented the new EO over the following months. See, e.g. 79 Fed. Reg. 72985 (Dec. 9, 2014), 41 C.F.R. § 60-1.1 et seq.

Shortly after signing EO 13672, President Obama issued EO 13673, also known as “Fair Pay and Safe Workplaces.” This EO directed government contractors to certify compliance with various federal employment statutes and regulations, including Title VII and EO 11246, as amended by EO 13672. This would have assisted with enforcement of these laws, but a series of legal challenges quickly followed.

In March 2017, Congress passed a joint resolution expressing disapproval of several agencies’ implementation of EO 13673. The same day, President Trump signed EO 13782, which formally revoked the earlier order. The Department of Labor (DOL) revised its own regulations based on the latest EO. See 82 Fed. Reg. 51358 (Nov. 6, 2017).

Through all of this, EO 13672 has remained in effect, at least officially. The White House has not revoked it, but by revoking other EOs, it has made enforcement of EO 13672 more difficult. The administration has also reportedly removed information about its legal protections from government websites. According to the WIP’s report, for example, the new administration made substantial changes to a DOL ”Frequently Asked Questions” webpage about EO 13672 within a week of taking office. Other pages with information and resources related to EO 13672 disappeared from the DOL’s website altogether.

The gender identity discrimination attorneys at Phillips & Associates advocate for New York City job applicants and employees, helping them assert claims for discrimination based on gender identity and gender expression. Please contact us today at (212) 248-7431 or online to schedule a free and confidential consultation to discuss your case with a member of our team.

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