Colman Domingo
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20 States Sue Over Biden Administration's LGBTQ+ Rights Guidelines

Tennessee Attorney General Herbert Slatery

Twenty state attorneys general have sued President Joe Biden’s administration over its guidelines for employers and schools on equal treatment of LGBTQ+ people.

The AGs, led by Tennessee’s Herbert Slatery, claim the federal government is interfering in matters that should be handled by the states, and they object particularly to guidance relating to transgender employees and students, such as access to restrooms and school sports teams comporting with their gender identity, use of their preferred pronouns, and enforcement of sex-specific dress codes.

The Equal Employment Opportunity Commission and the Department of Education had each issued guidance in June, in keeping with Biden’s executive order to implement the provisions of the Supreme Court’s ruling in Bostock v. Clayton County across the federal government. In that 2020 ruling, the high court found that workplace discrimination based on sexual orientation or gender identity is sex discrimination, illegal under Title VII of the Civil Rights Act of 1964. The Biden administration says this also applies to Title IX of the Education Amendments of 1972, which bans sex discrimination in education.

The guidelines do not specifically impose policies but warn that anti-LGBTQ+ discrimination will be investigated. The EEOC guidance includes advice on how to file a complaint of discrimination, and the Education Department guidance notes that the department will pursue remedies for any discrimination brought to its attention.

“The guidance purports to resolve highly controversial and localized issues such as whether employers and schools may maintain sex-separated showers and locker rooms, whether schools must allow biological males to compete on female athletic teams, and whether individuals may be compelled to use another person’s preferred pronouns,” says the lawsuit, filed Monday in U.S. District Court for the Eastern District of Tennessee. “But the agencies have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation.”

The guidelines constitute federal “overreach” and have created “nationwide confusion and upheaval,” the suit contends.

The suit asks for a declaration that Title VII and Title IX don’t prohibit restrooms or other facilities segregated by “biological sex,” don’t ban dress codes assigned on the same basis, and don’t require use of a trans person’s preferred pronouns.

The states that joined Tennessee in the suit are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia. The same group of states, again led by Slatery and Tennessee, sent a letter to Biden in July objecting to the guidance.

Several of these states and others have adopted anti-LGBTQ+ or specifically anti-trans laws this year. For instance, Alabama, Arkansas, Florida, Mississippi, Montana, Tennessee, and West Virginia have passed laws barring trans students from competing in school sports under their gender identity, and South Dakota’s governor has issued executive orders to this effect. Idaho passed similar legislation last year, but a federal judge has blocked its enforcement. The same has happened with West Virginia’s law, at least as it applies to the one trans student who brought a lawsuit. Governors in Kansas, Louisiana, and North Dakota have vetoed such legislation.

Named as defendants in the suit are Department of Education and Secretary Miguel Cardona, the EEOC and Chair Charlotte Burrows, the Department of Justice, U.S. Attorney General Merrick Garland, and Assistant Attorney General for Civil Rights Kristen Clarke.

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