Texas Attorney General Sues Biden Admin Again Over Guidance for Transgender Employees

The guidance clarified the definition of harassment under federal law.

Texas Attorney General Ken Paxton speaks at the Conservative Political Action Conference in Dallas, Texas, on Aug. 5, 2022. Bobby Sanchez/The Epoch Times

Texas Attorney General Ken Paxton has once again sued the Equal Employment Opportunity Commission (EEOC), U.S. Attorney General Merrick Garland, and other members of President Joe Biden’s administration in an effort to stop guidance from going into effect that the attorney general says will unlawfully require employers to implement “transgender mandates.”

Paxton announced the lawsuit—filed in the U.S. District Court of Northern Texas in Amarillo—in an Aug. 15 press release.

The legal challenge centers on federal guidance published in April that extends Title VII workforce protections for transgender employees by clarifying the definition of harassment under federal law.

In issuing the guidance, the EEOC said it will “help people feel safe on the job and assist employers in creating respectful workplaces.”

However, Paxton says it is unlawful, and that it opens private and state employers up to EEOC lawsuits if they do not accommodate employees’ preferred gender identity as opposed to their biological sex.

“The Biden-Harris Administration is attempting yet again to rewrite federal law through undemocratic and illegal agency action,” Paxton said.

The EEOC’s guidance states that sex-based discrimination under Title VII includes employment discrimination “based on sexual orientation or gender identity, including how that identity is expressed.”

Examples include, “Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; [and] repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering).”

‘Blatant Abuse of Federal Power’

Under the guidance, harassment also includes the “denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”

In his lawsuit, Paxton argued that the EEOC guidance relies on an “intentional misrepresentation” of the Bostock v. Clayton decision by the U.S. Supreme Court in 2020, in which the nation’s highest court ruled that employers can’t discriminate based on homosexuality or transgender identity.

“The Bostock majority ‘proceed[ed] on the assumption that ‘sex’ ... refer[s] only to biological distinctions between male and female,’ and did not include ‘norms concerning gender identity,’” Paxton said.

He further argued the agency has exceeded its statutory authority by issuing guidance that contradicts the law and violates the Administrative Procedure Act.

The Texas Attorney General asked the court to permanently enjoin the guidance and prevent the Biden administration from enforcing any aspect of the rule.

Paxton’s lawsuit, which was filed alongside conservative think tank the Heritage Foundation, also lists EEOC Chairwoman Charlotte Burrows as a defendant.

It marks Paxton’s second lawsuit against the EEOC’s guidance after U.S. District Judge Matthew Kacsmaryk rejected an earlier challenge in July, noting the attorney general’s complaint referred to a prior ruling on a previous document but was filed against a new document, and thus required a new lawsuit.

The judge stopped short of ruling on the merits of the case, and Paxton filed the new lawsuit.

Dan Mauler, general counsel for The Heritage Foundation, said it is proud to join Texas in its lawsuit.

The Epoch Times has contacted the EEOC and the Department of Justice for comment.