Republican-Led States Sue Biden Admin Over Title VII Guidance for Transgender Workers

The 18 states argue that the EEOC overstepped its legal authority when it issued new sexual harassment guidance.

President Joe Biden speaks to guests at Gateway Technical College’s iMet Center in Sturtevant, Wis., on May 8, 2024. Scott Olson/Getty Images

A group of attorneys general from 18 Republican-led states has filed a lawsuit against the Biden administration’s Equal Employment Opportunity Commission (EEOC) after it released new guidance extending Title VII protections to transgender workers.

The lawsuit, led by the state of Tennessee, was filed in federal court in Knoxville, Tennessee, on May 13.

Along with the Biden administration’s EEOC, the lawsuit lists 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 as defendants.

In their legal filing, the Republican-led states argue that the EEOC overstepped its legal authority when it issued new sexual harassment guidance on April 29 that “unlawfully” extends Title VII’s protections against sex-based discrimination to cover gender identity.

The new guidance could not only leave employers liable if they or another employee use a name or pronoun that does not match with an employee’s preferred gender identity but could also leave them vulnerable to lawsuits if they limit access to a bathroom or other sex-segregated facility—such as a shower or locker room—based on biological sex and not on gender identity.

The new guidance would also allow transgender employees to wear clothing that aligns with their gender identities, according to the lawsuit.

“EEOC’s Enforcement Document is an exemplar of recent federal agency efforts to enshrine sweeping gender-identity mandates without congressional consent,” the lawsuit reads.

“Among other things, the Enforcement Document declares that Title VII of the Civil Rights Act requires all covered employers and employees to use others’ preferred pronouns; allow transgender individuals to use the shower, locker room, or restroom that corresponds to their gender identity; and refrain from requiring employees to adhere to the dress code that corresponds to their biological sex.”

Guidance Reflects Supreme Court Ruling

Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on race, color, religion, sex, and national origin.

The states, in their lawsuit, stated that the EEOC wrongfully expanded Title VII when it extended protections to include gender identity.

The EEOC’s new guidance, published in April, reflects a 2020 Supreme Court ruling, Bostock v. Clayton County, in which the nation’s highest court ruled that employers can’t discriminate based on homosexuality or gender identity status.

According to the EEOC, that ruling found that sex-based discrimination under Title VII includes “employment discrimination based on sexual orientation or gender identity” and, accordingly, “sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed.”

The Biden administration has said that the new federal guidance is meant to protect transgender Americans from workplace discrimination.

In their lawsuit, the states noted that they agreed with the 2020 Supreme Court ruling but stated that the ruling was “narrow” in that the court “held only that terminating an employee ’simply for being homosexual or transgender‘ constitutes discrimination ’because of ... sex.'”

The ruling did not dictate that employers be forced to make accommodations with respect to workers’ gender identity and sexual orientation, the attorneys general noted.

Signage denoting a unisex bathroom can be seen at Melbourne Airport in Australia, on Oct. 31, 2023. Susan Mortimer/The Epoch Times

‘Punish the Use of Biologically Accurate Pronouns’

“Neither Title VII, nor Bostock, nor any other federal precedent gives EEOC license to impose a gender-identity accommodation mandate, which flunks major-question scrutiny and raises constitutional concerns,” the lawsuit reads.

“This new regime threatens Tennessee, its co-Plaintiff States, and countless other employers with enforcement actions and civil liability unless they promote the gender-identity preferences of their employees.”

In a May 13 statement, Tennessee Attorney General Jonathan Skrmetti called the new EEOC guidance an attack on the “separation of powers” under U.S. law.

“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,” Mr. Skrmetti said.

“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. 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.”

Along with the state of Tennessee, the attorneys general of Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia, and West Virginia joined in the lawsuit.

EEOC officials didn’t respond by press time to a request by The Epoch Times for comment.