The U.S. Department of Energy has joined the U.S. Departments of Agriculture, Commerce, Education, Health and Human Services, Transportation, Housing and Urban Development (HUD), Interior, Labor, State, Veterans Affairs, and several other agencies in updating its EEO policy to make clear that anti-transgender discrimination constitutes sex discrimination.
In a legal sense, transgender federal employees have been protected since 2009, when President Obama sent a memorandum directing all agencies to issue updated guidance under the Civil Service Reform Act of 1978, which prohibits discrimination against federal workers and job applicants based on any non-merit basis. Since then, the National Center for Transgender Equality (NCTE) has worked with many federal agencies to cement these principles into agency culture and rules in two ways: 1) We have conducted numerous trainings within agencies, and 2) we have also asked them to enumerate “gender identity” into their written agency Equal Employment Opportunity (EEO) policies. While “gender identity” is a protected class across the federal government, there is an important effect in having individual agencies name and embrace the inclusion. It makes transgender employees and job applicants more comfortable that they are protected and helps educate others throughout the agency about this important principle.
However, some agencies were quicker than others to spell out gender identity protections in their internal policies, and in many cases agencies were unclear as to whether transgender workers could use the stronger complaint processes available for sex discrimination claims, as opposed to those under the civil service law. This question was resolved by the Equal Employment Opportunity Commission’s 2012 decision in Macy v. Holder, which held that all federal agencies must treat anti-transgender discrimination complaints the same as other sex discrimination complaints.
While Macy is not binding on courts or private employers, it is binding on the federal government, and most agencies have updated their policies to reflect this. To date, only the Departments of Defense, Homeland Security, and Treasury, along with some smaller agencies, haven’t yet made official updates.
Below is the complete EEO statement from the Department of Energy as shared earlier this week by Secretary Moniz to all 14,000 Energy employees.