The attorney general of Tennessee and 20 other Republican state attorneys general are objecting to President Joe Biden’s moves to protect LGBTQ+ people, especially transgender people, from discrimination.
On his first day in office, Biden issued an executive order requiring all federal agencies to implement the provisions of the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which found that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also bans discrimination based on sexual orientation and gender identity.
Tennessee Attorney General Herbert Slatery III, however, has written a letter to Biden contending that recent interpretations of the ruling by the Equal Employment Opportunity Commission and the Department of Education went far beyond what the court intended. Twenty of his counterparts from other states signed on to the missive, released Wednesday.
The actions by the EEOC and the Education Department “threaten to impose unlawful regulatory guidance upon nearly every employer and educational facility in our states and throughout the country,” the letter says, adding, “In each instance, the agency misconstrued federal law and failed to adhere to the transparency and deliberative process required by the Administrative Procedure Act.”
The objections from the signatories center on transgender people’s access to restrooms and changing rooms, both in the workplace and in schools, and use of their preferred pronouns. An EEOC document issued in June states that employees should have access to the facilities designated for the gender with which they identify and should be subject to the dress codes for that gender as well. The document also says that “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment,” although an isolated instance of accident misuse likely would not.
The Education Department guidance, published in the Federal Register in June, does not explicitly mention these matters (a related fact sheet covers restroom access but not showers or locker rooms, according to the AG’s), but says schools should avoid “differential treatment” of trans students. As examples of such treatment, it cites, among others, the case of Gavin Grimm, a trans boy who was denied access to the boys’ restroom at his high school (and won his discrimination suit). The department’s guidance deals with its interpretation of Title IX of the Education Amendments of 1972 in light of the Bostock ruling. Title IX is similar to the Civil Rights Act’s Title VII in banning sex discrimination but applies to education.
The attorneys general are objecting because “the Court in Bostock narrowly addressed employment termination and explicitly refrained from addressing ‘sex-segregated bathrooms, locker rooms, and dress codes,’” the letter says. The AG’s also say the ruling “did not provide any basis for a claim that using biologically accurate pronouns could violate the law.” They describe the Education Department’s language as “vague enough to leave significant questions unanswered but menacing enough to coerce many schools into quick capitulation.”
They also contend that the EEOC and the Education Department are ignoring protections for religious liberty, as laid out in the First Amendment to the U.S. Constitution and the federal Religious Freedom Restoration Act. However, both agencies’ documents say they recognize religious organizations’ exemption from certain aspects of antidiscrimination law, which has long been the case.
In addition to Slatery, the letter was signed by 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.