New federal regulations that would effectively force employers and employees to use transgender pronouns are illegal, says a lawsuit filed by 18 states against the Democrat-run executive agency.
Filed on Monday in the U.S. District Court for the Eastern District of Tennessee, the lawsuit brought by Tennessee Attorney General Jonathan Skrmetti and 17 other attorneys general contends that the Equal Employment Opportunity Commission’s (EEOC’s) unilateral move to extend the 1964 Civil Rights Act’s Title VII protections to include so-called “gender identity” represents an unlawful attempt to “enshrine sweeping gender-identity mandates without congressional consent.”
“In America, the Constitution gives the power to make laws to the people’s elected representatives, not to unaccountable commissioners, and this EEOC guidance is an attack on our constitutional separation of powers,” Skrmetti said in a statement. “When, as here, a federal agency engages in government over the people instead of government by the people, it undermines the legitimacy of our laws and alienates Americans from our legal system.”
According to the suit, the “Enforcement Document” the EEOC released on April 29 “requires all covered employers and employees to use others’ preferred pronouns; allow transgender individuals to use the shower, locker room, or restroom that corresponds to their gender identity; and refrain from requiring employees to adhere to the dress code that corresponds to their biological sex.”
The agency justified its new guidance by citing the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, written by Associate Justice Neil Gorsuch and joined by Chief Justice John Roberts along with the court’s four unwavering Constitution-rejecters. Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh dissented, predicting Bostock would set off decades of litigation about sex and gender.
In that case, the high court arbitrarily ruled that firing an employee “simply for being homosexual or transgender” constitutes prohibited “sex” discrimination under Title VII. While Gorsuch claimed women and men are interchangeable and thus “sex” discrimination includes “gender” discrimination, the attorneys general note in their suit against the EEOC that SCOTUS “expressly declined to ‘prejudge’ issues like ‘bathrooms, locker rooms, and dress codes’ under Title VII’s anti discrimination provision.”
The recently released EEOC regulations are similar to rules the agency previously issued in June 2021 that argued, “in certain circumstances,” an employer or fellow employee’s “use of pronouns or names that are inconsistent with an individual’s gender identity” could be “considered harassment.” The agency also used SCOTUS’s Bostock decision to justify that regulation.
The U.S. District Court for the Northern District of Texas struck down the EEOC’s rules in October 2022. In his decision, Judge Matthew J. Kacsmaryk ruled the agency’s guidance misapplied the Bostock decision and violated numerous federal laws and its own regulations by “issuing substantive, legislative rules through improper procedures.”
“The June 15 guidance imposes dress-code, bathroom and pronoun accommodations as ‘existing requirements under the law’ and ‘established legal positions’ in light of Bostock and prior EEOC decisions interpreting Title VII [of the Civil Rights Act of 1964],” Kacsmaryk wrote. “But Title VII—as interpreted in Bostock—does not require such accommodations.”
The ruling came months after the U.S. District Court for the Eastern District of Tennessee “temporarily blocked the guidance because it interfered with states’ sovereign authority to enforce their state laws,” the Society for Human Resource Management reported. Unlike the Texas court, however, the Tennessee court did not address “the substantive flaws with EEOC’s reading of Title VII,” only concluding “that EEOC needed to subject its novel gender-identity guidance to notice-and-comment procedures,” according to Skrmetti and his fellow attorneys general.
The EEOC’s relentless attempts to force employers to adopt extremist gender theory come weeks after the Democrat-controlled Department of Education unilaterally rewrote Title IX rules to allow males “identifying” as females to invade women’s spaces in schools. As my colleague Jordan Boyd reported, the new guidelines “effectively erase protections for sex-based spaces by expanding the Title IX prohibition against sex discrimination to include ‘gender identity’ — a term that’s never mentioned in the original law.”
This means that men proclaiming to be women can use formerly female-only spaces such as locker rooms and sororities and participate in female-only sports leagues. The new rules have prompted a flurry of lawsuits from GOP-led states. Florida and Oklahoma have instructed their schools to not comply.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
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