Eighteen Republican-led states are suing the Biden administration’s Equal Employment Opportunity Commission over the federal agency’s new sexual-harassment guidance that enforces broad legal protections for transgender workers.
The federal lawsuit, filed on Monday by Tennessee attorney general Jonathan Skrmetti, argues that the EEOC is overstepping its constitutional limits by unlawfully placing gender identity under the purview of Title VII, which prohibits employment discrimination based on race, color, religion, sex, and national origin.
The states agree with the 2020 Supreme Court ruling, Bostock v. Clayton County, that firing employees because they are transgender or gay constitutes sex-based discrimination. The plaintiffs, however, argue that the decision does not weigh on the accommodations that the EEOC required employers to abide by last month.
On April 29, the commission updated its workplace-harassment guidance for the first time in nearly 25 years, requiring employers to use transgender workers’ preferred pronouns and allowing them to use bathrooms corresponding with their gender identity. Employers may be held liable if they, their employees, or the customers do not follow the new policy and its provisions.
The multistate coalition acknowledges that Title VII of the Civil Rights Act of 1964 ensures equal opportunity for women in the workplace, but contends that the EEOC lacks the power to mandate that employers provide accommodations to transgender workers.
“EEOC has no authority to resolve these highly controversial and localized issues, which are properly reserved for Congress and the states,” the 46-page lawsuit states.
The guidance is also invalid, the states claim, because the EEOC, as an independent federal agency, lacks the authority to enforce the gender-identity protections. In theory, the president can remove the EEOC’s five commissioners at will. But it’s unlikely President Joe Biden will do that, given his role in paving the way for the new rules.
Upon his inauguration in 2021, Biden signed an executive order authorizing the gender-identity protections that the EEOC put forth. As a result of the order, the EEOC and Department of Education issued guidance to implement those very protections under Title VII and Title IX, the latter of which bars sex-based discrimination in federally-funded educational institutions. Biden’s Title IX rewrite is also being legally challenged by multiple Republican states.
“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,” he continued. “This end-run around our constitutional institutions misuses federal power to eliminate women’s private spaces and punish the use of biologically-accurate pronouns, all at the expense of Tennessee employers.”
The other defendants are EEOC chairwoman Charlotte Burrows, the Department of Justice, U.S. attorney general Merrick Garland, and U.S. assistant attorney general for the Civil Rights Division Kristen Clarke.
Skrmetti filed the lawsuit on behalf of the attorneys general from Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia, and West Virginia.