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Texas sues Biden admin for the First Amendment right to misgender trans people while they work

Texas Attorney General Ken Paxton (R)
Texas Attorney General Ken Paxton (R)Photo: Screenshot

Texas Attorney General Ken Paxton (R) has filed a federal lawsuit against the U.S. Equal Employment Opportunity Commission (EEOC), saying that the federal agency’s guidance on LGBTQ rights is “extreme federal overreach” that violates Texas’s “sovereign right” to determine workplace policies, specifically when it comes to LGBTQ job discrimination protections in the workplace.

The lawsuit goes so far as to claim that employers like the state of Texas have a First Amendment right to refer to transgender people by the wrong names and pronouns.

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To promote the lawsuit, Paxton claimed that letting trans people use the correct restroom at work will lead to violence against women and child molestation, a claim not made in the suit itself.

“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,” he said in a 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,” he continued. “These backdoor attempts to force businesses, including the state of Texas, to align with their beliefs is unacceptable.”

The lawsuit is about EEOC guidance issued in June to implement the landmark LGBTQ Supreme Court victory from 2020, Bostock v. Clayton Co. The Court ruled that Title VII’s ban on discrimination “because of sex” in the workplace includes anti-LGBTQ discrimination because it’s impossible to discriminate against someone for being LGBTQ without taking their sex into account.

The EEOC explained how workplaces can avoid discriminating illegally against LGBTQ people in the guidance. Among the guidelines are: workplace dress codes can differentiate based on gender but not sex assigned at birth, it’s a form of workplace harassment to not use a trans employee’s name and pronouns, and restrooms and other gender-segregated facilities can only be separated based on gender, not sex assigned at birth.

“If an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities,” the EEOC’s guidance states.

The Texas lawsuit says that the EEOC doesn’t have the authority to do this, arguing that the Bostock decision was too narrow to apply to the question of restrooms and other facilities.

The lawsuit also relies heavily on the Texas Department of Agriculture’s (TDA) policies, saying that TDA requires employees to dress, use the restroom, and accept being referred to with the pronouns associated with their sex assigned at birth. The lawsuit argues that the EEOC guidance makes the TDA “susceptible to ‘charges’ of discrimination based on EEOC’s unlawful interpretation of Title VII.”

The lawsuit, like most conservative lawsuits to overturn transgender rights, refers to trans women as “biological men” and trans men as “biological women” to diminish the importance of transgender people’s – but not cisgender people’s – gender identities.

Paxton accuses the EEOC of violating Texas’s free speech rights by forcing the state to use trans people’s names and pronouns, as well as several counts related to Title VII and administrative rules.

Last month, the state of Tennessee was joined by 19 other red states in a lawsuit challenging the same EEOC guidance, as well as the Department of Education’s measures to protect transgender rights in education.

And in July, 21 Republican state attorneys general signed a letter complaining that the EEOC guidance will “serve only to sow confusion among regulated entities — including the employers and schools that operate in our communities.”

Neither of the lawsuits nor the letter offered an alternative plan to protect transgender workers’ right to a harassment-free workplace, instead of focusing on employers’ ability to set policies in accordance with their personal beliefs.

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