Three Democratic U.S. House members have sent a letter to the U.S. Office of Personnel Management demanding that it cease discriminating against transgender people.
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Reps. Mark Takano of California, chair of the Congressional Equality Caucus; Jamie Raskin of Maryland, ranking member of the House Committee on the Judiciary; and Gerald E. Connolly of Virginia, ranking Member of the House Oversight Committee, sent the letter Wednesday to OPM Acting Director Charles Ezell, calling on him to end of the implementation of Donald Trump’s “two sexes” Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” and rescind the OPM guidance on doing so.
“Executive Order 14168 unlawfully attacks the civil rights of transgender Americans, and while Executive Order 14168 is in and of itself troubling, it is your memo and guidance that actually implements unlawful discrimination by the federal government against transgender people in the civil service and the provision of federal services,” the letter says.
“Executive Order 14168 and OPM’s implementing guidance directs agencies to end all programs, contracts, grants, positions, documents, directives, orders, regulations, materials, forms, communications, statements, plans, and training that ‘inculcate’ or ‘promote’ ‘gender ideology’ — which the Executive Order defines broadly to encompass acknowledging the simple existence of transgender people and gender identity.”
The letter reminds Ezell that “Executive Orders cannot override the Constitution, federal laws, or Supreme Court precedent.” In the 2020 Bostock v. Clayton County decision, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also bans discrimination based on sexual orientation and gender identity.
“Numerous courts and agencies have properly, and consistently with Bostock’s legal reasoning, interpreted and enforced other civil rights laws that prohibit sex discrimination to prohibit discrimination based on gender identity,” the lawmakers write. “In addition, in Lusardi v. McHugh, the Equal Employment Opportunity Commission held that prohibiting transgender people from using the restroom consistent with their gender identity violates Title VII.”
The OPM’s memo implementing the “two sexes” executive order would end trainings for federal employees and the private sector on how to protect trans people from discrimination, and it would force the cancellation of existing contracts.
“Moreover, this memo appears to be part of a broader attempt to decrease support for LGBTQI+ workers in the federal workforce and push them out of the federal government,” the letter goes on. “The Administration has foreshadowed an intent ‘to lay off employees doing work related to ‘gender ideology”’ in a similar fashion to its targeting of federal workers who focus on diversity, equity, and inclusion. In that vein, the memo requires that ‘all employees whose position description involves inculcating or promoting gender ideology’ be put on immediate administrative leave.”
It also effectively bans employee resource groups that support trans people and bar trans workers from using the restroom consistent with their gender identity, something that would open them to harassment along with any other employee who doesn’t conform to gender stereotypes, the legislators note.
They point out that Trump’s “two sexes” order and other anti-trans orders appear to be motivated by animus — hatred — and animus “is neither an important nor legitimate government interest, and government policies motivated by animus are clear violations of the Constitution’s guarantee of equal protection of the laws.”
“We are deeply alarmed by these and other actions the Trump Administration has taken in its first few weeks to eliminate all government support for the transgender community, including efforts designed to enforcing the rights and support the health of transgender individuals,” they conclude. “We are also appalled by the Administration’s attempts to weaponize federal agencies to target the transgender community for discrimination and exclusion. These actions contradict federal law, Supreme Court precedent, and most importantly the Constitution’s guarantee of equal protection under the law. Again, we urge you to rescind your unconstitutional and unlawful memo and instead uphold your oath to support and defend the Constitution and laws of the United States.”
