A coalition of 20 Republican-led states filed a lawsuit earlier this week seeking to strike down Biden administration guidance issued by the U.S. Equal Employment Opportunity Commission and the U.S. Department of Education allowing transgender workers and students to use restrooms and locker rooms matching their gender identity.
Attorneys general for each of the states, led by Tennessee Attorney General Herbert Slatery, say in a complaint, filed in the Knoxville-based U.S. District Court for the Eastern District of Tennessee, that the two federal agencies overstepped their authority by embracing an overly broad interpretation of a Supreme Court decision last year in favor of transgender workers.
In June 2020, the nation’s highest court ruled that prohibitions on sex-based discrimination contained in Title VII of the Civil Rights Act of 1964 extend to LGBTQ people, meaning employers cannot terminate workers solely on the basis of their sexual orientation or gender identity.
In that decision, the court declined to say whether prohibitions on workplace discrimination applied to sex-segregated facilities like restrooms and locker rooms. However, the Republican attorneys general claim, the EEOC and Department of Education used that decision to push through policies that allow transgender people to use facilities consistent with their gender identity.
In June, the Department of Education issued guidance saying that, based on the principle underlying the Supreme Court’s decision on Title VII, instances of discrimination based on a student’s sexual orientation or gender identity would be treated as a violation of Title IX, the 1972 federal law prohibiting sex-based discrimination in educational settings. According to the agency, that principle would also apply to instances where a transgender student was barred from a restroom or locker room, or barred from trying out for a sports team that does not match their assigned sex at birth.
In June, the Supreme Court declined to hear a challenge to a decision by the 4th U.S. Circuit Court of Appeals finding that a Virginia school board’s restroom policy based on assigned sex at birth violates Title IX, effectively allowing students in states under the circuit court’s jurisdiction to to access restrooms consistent with their gender identity.
Also in June, the EEOC released guidance about what constitutes anti-LGBTQ discrimination — including denying transgender employees access to sex-segregated facilities consistent with their gender identity — and advised the public about how to file a complaint alleging discrimination, reports Reuters.
In their complaint, the attorneys general claim that the guidance from both agencies “concerns issues of enormous importance to the States, employers, educational institutions, employees, students, and other individual citizens.”
“The guidance purports to resolve highly controversial and localized issues such as whether employers and schools may maintain sex-separated showers and locker rooms, whether schools must allow biological males to compete on female athletic teams, and whether individuals may be compelled to use another person’s preferred pronouns,” the complaint reads. “But the agencies have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation.”
Rather, they argue, issues related to restroom or locker room use remain under the purview of Congress or individual states, which may choose to either allow transgender people to access gender-affirming facilities or sports teams, or restrict them to using facilities designated for their assigned sex at birth.
In addition to Tennessee, the states involved in the lawsuit include: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia.
In their lawsuit, the attorneys general of those states ask the court to declare that Title IX and Title VII don’t prohibit schools from having sex-segregated facilities, barring membership on sports teams, refusing to require employees and other students use a transgender person’s preferred pronouns, or imposing workplace dress codes based on a person’s “biological sex.”
They also argue that both agencies’ moves violate the Administrative Procedure Act by not going through the rulemaking process, threaten the states’ sovereignty, subject them to potential liability for failing to enforce the government’s interpretation of the statutes, and that the Department of Education’s guidance, specifically, puts schools and colleges that do not comply at risk of losing federal education funding.
The Department of Justice has embraced a view similar to that pushed by the Department of Education and the EEOC, filing statements of interest seeking to overturn a West Virginia law prohibiting transgender athletes from playing on sports teams consistent with their gender identity, and an Arkansas law prohibiting transgender youth from accessing gender-affirming medical treatments.
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