- The Magazine
A coalition of Republican attorneys general have written a letter to President Joe Biden criticizing guidance from federal agencies that recognizes the right of transgender students and employees to use bathrooms that match their gender identity and to be addressed using their preferred pronouns.
In the letter, led by Tennessee Attorney General Herbert Slatery III, the attorneys general criticize guidance handed down by the U.S. Equal Employment Opportunity Commission and the U.S. Department of Education regarding the Supreme Court’s ruling in the Bostock v. Clayton County case, which found that anti-LGBTQ employment discrimination is a form of prohibited sex-based discrimination under the Civil Rights Act.
The Republicans argue that both federal agencies have overstepped their authority by embracing interpretations of federal law in which protections against sex discrimination are extended to transgender people while failing to involve states, localities, and parents and students in their decision.
In both instances, the attorneys claim, “the agency misconstrued federal law and failed to adhere to the transparency and deliberative process required by the Administrative Procedure Act.”
Signatories to the letter include Slatery, as well as the attorney generals 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.
With respect to the EEOC guidance, the attorneys general claim the document was “issued unilaterally” by EEOC Chair Charlotte Burrows “without the input or approval of the other Commissioners.”
“There was no notice to the public that such guidance was contemplated. There was no formal meeting of the Commission, which would have been open to the public and subject to public participation. Nor did the Commission vote on whether to issue the guidance,” the letter claims.
“The document simply appeared and gave the imprimatur of the federal government to a radically inaccurate construction of Title VII.”
The letter also claims that while the Bostock case makes it illegal to fire a transgender woman if the employer would not fire a similarly situated cisgender women, there are different interests to consider and balance when it comes to having a transgender woman share facilities with cisgender women.
They also claim that separate facilities based on assigned sex at birth are lawful because the existence of such sex-segregated facilities “does not involve treating an employee ‘worse than others who are similarly situated.'”
Similarly, with respect to pronouns, the attorneys general attempt to argue in the letter to Biden that using a person’s preferred pronouns is compelled speech that violates the First Amendment, arguing that “the EEOC’s guidance comes across as an effort to leverage the authority of the federal government to chill protected speech disfavored by your administration.”
They also note that nothing in Bostock makes it illegal for an employer to refuse to adopt nontraditional pronouns (such as xe/xem/xyrs/xemself) when referring to an employee — as compared to guidance that categorizes a refusal as a potential form of harassment.
Regarding the Department of Education’s Title IX guidance, the attorneys general accuse the department of completely rewriting the statute to suit its own means in order to allow trans individuals to use facilities matching their gender identity.
“Far from providing guidance and clarity as to the state of the law, the recent actions of the EEOC and ED seek to rewrite the law without any of the procedural safeguards or democratic accountability required by our constitutional system,” the letter reads. “…Schools are left to wonder whether, per the two documents, your administration will seek to punish them if they exclude boys who identify as girls from the girls’ showers and locker rooms after gym class.
“This is a matter of concern for millions of students and parents who appreciate the availability of private facilities for bathing and changing at school. They are entitled to an opportunity to be heard: we Americans are not passive recipients of the law, but rather active participants in the process of its creation and revision,” the letter continues.
“In addition, schools must grapple with the contradiction between this bureaucratic guidance and the Constitution. Your agencies dictate that using the pronouns that correspond with a transgender person’s sex could be illegal, while the First Amendment protects speakers who continue to use those pronouns. By unilaterally plunging ahead with these sweeping dictates, your administration harms the rule of law and undermines the legitimacy of these executive agencies.”
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