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Texas Seeks Right to Discriminate Against Trans People

Ken Paxton

The state of Texas is suing President Joe Biden’s administration over its guidance on treatment of transgender people in the workplace, calling the guidance a “radical attempt at social change.”

The suit, filed by anti-LGBTQ+ Texas Attorney General Ken Paxton, particularly objects to the administration’s calls for employers to allow trans workers to use the restrooms and changing rooms comporting with their gender identity and to address these workers by their preferred names and pronouns.

“States should be able to choose protection of privacy for their employers over subjective views of gender, and this illegal guidance puts many women and children at risk,” Paxton said in an online statement. “If the Biden Administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change. These backdoor attempts to force businesses, including the State of Texas, to align with their beliefs is unacceptable.”

The Texas suit, filed Monday in U.S. District Court for the Northern District of Texas, joins a similar one filed by 20 other states last month. That one was led by Tennessee Attorney General Herbert Slatery and included a challenge to guidance for schools, which is not mentioned in the Texas complaint. But both object to guidance for employers, issued by the U.S. Equal Employment Opportunity Commission in June.

The EEOC guidance 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 accidental misuse likely would not. It does not specifically impose penalties but warns that complaints of anti-LGBTQ+ discrimination will be investigated and offers advice for workers on filing these complaints.

The guidance was issued in keeping with Biden’s executive order for all federal government agencies to implement the provisions of the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which found that discrimination based on sexual orientation or gender identity is sex discrimination and therefore illegal under Title VII of the Civil Rights Act of 1964.

But the EEOC guidance goes beyond the court’s ruling in Bostock, which “explicitly disclaimed that it was deciding whether ‘sex-segregated bathrooms, locker rooms, and dress codes’ would violate Title VII,” the Texas suit says, adding, “Nor did the Court ever address the issue of pronouns.”

Requiring that state employees use their trans colleagues’ preferred names and pronouns “would cause Texas to violate its employees’ free speech rights,” the suit continues. It claims that these pronouns are “based on subjective gender identity rather than biological sex.” In general, the suit says, the EEOC guidance obligates employers “to treat biological men as women and treat biological women as men.”

The suit also says the EEOC did not go through proper procedures in issuing the guidance. It seeks to have the guidance invalidated and for Texas to be reimbursed for attorneys’ fees and court costs. The EEOC and its chair, Charlotte Burrows, are named as defendants, along with U.S. Attorney General Merrick Garland. The EEOC has declined comment on the suit.

Paxton and other Texas state officials, including Gov. Greg Abbott and Lt. Gov. Dan Patrick (all Republicans), are well known for their hostility to LGBTQ+ equality. Before the Supreme Court heard the Bostock case, Paxton and several other states’ attorneys general filed a friend-of-the-court brief urging the court to find that sex discrimination did not include discrimination based on sexual orientation or gender identity. When Barack Obama was president, Paxton sued his administration over guidance on equal treatment of transgender youth in schools and a ban on anti-trans discrimination in health care.

Also, the Texas legislature is currently in its third special session of the year, considering restrictions on trans students’ participation in school sports, a priority of Abbott’s.

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