Texas Sues Biden Administration Over Federal Transgender Guidance

Equal Employment Opportunity Commission says employers must use preferred pronouns

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September 24, 2021

Texas is suing the Biden administration to invalidate a federal civil rights directive on pronoun usage and bathroom access in the workplace.

The challenge is to an Equal Employment Opportunity Commission advisory that says employers must let LGBT workers access the bathrooms of their choice. The EEOC warned in the same advisory that failure to use a worker's preferred pronouns could amount to unlawful harassment. The document is based on the Supreme Court's landmark gay rights decision, Bostock v. Clayton County.

In Bostock, the Supreme Court said it is illegal under federal law to fire someone for being gay or transgender. President Joe Biden signed an executive order committing to a whole-of-government implementation of the Bostock decision on his first day in office. The order intends to guarantee civil rights protections for LGBT people in a wide range of contexts, from housing to refugee resettlement. The order put the administration on a collision course with red state dissenters on issues like bathroom access and women's sports.

Texas says the EEOC's directive goes well beyond the Court's holding in Bostock and violates the First Amendment to the extent it forces workers to use a person's preferred pronouns.

"States should be able to choose protection of privacy for their employers over subjective views of gender, and this illegal guidance puts many women and children at risk," Texas attorney general Ken Paxton said in a statement. "These backdoor attempts to force businesses, including the state of Texas, to align with [EEOC's] beliefs is unacceptable."

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

Texas is suing because many of the state's agencies could face investigations or lawsuits if the document is allowed to stand. For example, the Texas Department of Agriculture requires its employees to dress "tastefully and professionally and be well groomed," according to the complaint. It would consider an employee "dressed as a member of the opposite sex" to be in violation of the dress code policy. It does not have a policy on pronoun usage.

Agency offices have both mixed-sex bathrooms and unisex, single-occupancy bathrooms. State lawyers said in the complaint that the agency will not allow employees to use bathrooms inconsistent with their biological sex.

Though the Court ruled narrowly in Bostock, administration lawyers and judicial liberals say the justices' reasoning naturally applies to other forms of LGBT discrimination. Lawyers for the state counter that Bostock is limited to and cannot justify guidance as expansive as EEOC's.

"Bostock is far narrower than the June 15 guidance," the lawsuit reads. "Bostock explicitly disclaimed that it was deciding whether sex-segregated bathrooms, locker rooms, and dress codes would violate Title VII. Nor did the Court ever address the issue of pronouns."

The Court's decision said it was not broaching any disputes involving "sex-segregated bathrooms, locker rooms, and dress codes."

"None of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today," the decision reads.

An agency spokeswoman told the Free Beacon in June that the guidance document simply applies the Court's reasoning in Bostock to new contexts, which is not unusual.

"EEOC is also charged by statute with the responsibility to enforce the law which includes applying established principles to new fact patterns," EEOC spokeswoman Christine Saah Nazer said. "It is not restricted to opining only on issues the Supreme Court has already decided."

Elsewhere in the lawsuit, state lawyers say EEOC's guidance forces them to violate their employees' free speech rights.

"By purporting to require that employers and their employees use of an individual's preferred pronouns based on subjective gender identity rather than biological sex, the June 15 Guidance unconstitutionally compels and restrains speech," the lawsuit reads.

EEOC chair Charlotte Burrows issued the document without a vote of the agency's commission. The lawsuit says this is another reason for the court to block it.

The case, Texas v. EEOC, has been assigned to U.S. District Judge Matthew Kacsmaryk in the U.S. District Court for the Northern District of Texas.

Texas v. EEOC complaint by Washington Free Beacon