Republican Attorneys General Challenge Controversial EEOC Transgender Guidance

Almost two dozen states believe the agency's guidance is unlawful

Transgender Bathrooms
July 8, 2021

A coalition of 21 red state attorneys general sent a letter to President Joe Biden Wednesday opposing new regulatory guidance on pronoun preferences and sex-separate bathrooms and locker rooms.

The Education Department and the Equal Employment Opportunity Commission in June issued an informal guidance document on the Supreme Court’s landmark gay rights decision in Bostock v. Clayton County. Many schools and employers will choose to comply even though those directives do not have the force of law, prompting critics to charge the administration with social engineering through regulatory minutiae.

"Federal agencies do not have the authority to unilaterally change laws. That is the exclusive prerogative of Congress," said Tennessee attorney general Herbert Slatery, who led the red state coalition. "Actions like these exclude the voices, votes, and participation of the people and their representatives, which is neither right nor constitutional."

Though the letter does not threaten a lawsuit, it represents an early marker that almost two dozen states believe the agency's announcement is unlawful.

EEOC chair Charlotte Burrows unilaterally issued the guidance document purporting to interpret Bostock on June 15. The release advises that employers cannot require LGBT workers to follow dress codes or use bathrooms corresponding to their biological sex. It further warns that failure to use a worker’s preferred pronouns may, if pervasive enough, amount to unlawful harassment.

The Washington Free Beacon reported on June 25 that some EEOC officials think Democrat appointees violated internal procedures to issue the document, and that some career attorneys at the agency are anxious about defending it in court.

A day after the EEOC’s document appeared, the Education Department issued a "notice of interpretation" that similarly warned school administrators it would enforce civil rights laws to protect LGBT students and teachers. Though the notice is not explicit on these points, it favorably cites cases from the lower federal courts involving trans students seeking access to their preferred bathrooms and a lesbian choir leader who sued a Catholic university for alleged harassment.

The notice warns the department will open an investigation if it learns LGBT people are being "excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities."

Neither document is an official, binding agency regulation. As such, officials issued them without public input and without warning to regulated entities. The attorneys general said both documents are a bid to rewrite the law without transparency, accountability, and normal procedural safeguards.

"This is a matter of concern for millions of students and parents who appreciate the availability of private facilities for bathing and changing at school," the letter reads. "They are entitled to an opportunity to be heard: We Americans are not passive recipients of the law, but rather active participants in the process of its creation and revision."

Critics inside and outside the administration also say the guidance documents go much further than the Court’s decision in Bostock. Though both agencies claim to faithfully implement the Court’s mandate, the decision expressly reserved issues like trans bathroom access and women’s athletics for future cases.

An EEOC spokeswoman countered that its guidance works off the "core principles" of the decision.

"EEOC’s role as a civil rights enforcement agency is to apply the principles adopted by the Court to the host of issues that may arise in other contexts," spokeswoman Christine Nazer told the Free Beacon.

Other signatories to the letter include the attorneys general of Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, and West Virginia.

The White House did not reply to a request for comment.