Texas Attorney General Ken Paxton is suing the Biden administration over new federal guidance requiring pronoun usage in the workplace based on “gender identity” and accommodations for bathroom use and dress code compliance.
According to a complaint filed on May 21 in the U.S. District Court of Northern Texas in Amarillo, the U.S. Equal Employment Opportunity Commission (EEOC) has unlawfully redefined “sex” in the 1964 Civil Rights Act to recognize gender identity instead of biological sex, even though a 2022 federal court ruling in favor of Texas already stated that the EEOC doesn’t have the authority to mandate reinterpretations of the 60-year-old law.
EEOC’s updated “Enforcement Guidance on Harassment in the Workplace” was released on April 29. The added language notes “gender identity, including how that identity is expressed.”
The updated guidance says harassing conduct includes “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
The guidance provides an example in which “Chloe,” an employee at a retail store warehouse, is confronted by a supervisor, Alton, who says he heard a rumor that “there was a transvestite in the department.” Chloe tells the supervisor that she’s transgender and asks him to keep this information confidential. Alton asks Chloe to wear trousers to work because a dress would be “inappropriate” and, when he is frustrated with Chloe, misgenders her by using, with emphasis, “he/him” pronouns, sometimes in front of Chloe’s co-workers.
“Based on these facts,” the guidance says, “Alton’s harassing conduct toward Chloe is based on her gender identity.”
Paxton’s complaint notes that EEOC commissioners approved the 2024 update with a 3–2 vote in which Commissioner Andrea Lucas, dissenting, said the guidance “effectively eliminates single-sex workplace facilities and impinges on women’s (and indeed, all employees’) rights to freedom of speech and belief.”
“It is not harassment to acknowledge biological sex or the enduring differences between men and women.” Ms. Lucas is quoted in court papers, adding that she also said providing single-sex bathrooms and similar facilities “implicate significant privacy and safety interests.”
The legal battle between Texas and the EEOC over issues of “gender identity” dates to June 2021, when EEOC Chair Charlotte Burrows sent to the Texas Department of Agriculture a “technical assistance document” that noted transgender employees aren’t required to dress in accordance with their assigned sex from birth.
According to Mr. Paxton’s September 2021 lawsuit filed in the same court. it also said the employer must provide restroom and locker room accommodations based on an employee’s “gender identity” and that using incorrect pronouns for a transgender person contributes to a hostile workplace environment. The complaint said Ms. Burrows’s guidance wasn’t approved in a vote of the full commission and that it was never published in the Federal Register.
The Oct. 1, 2022, judgment awarded in favor of Mr. Paxton notes that Ms. Burrows’s June 15 guidance was unlawful.
Despite that ruling, the EEOC continued work on updated workplace harassment policies, gathering public input in 2023 before the most recent version was announced in late April, according to an EEOC statement.
The updated guidance, the statement says, “reflects the EEOC’s commitment to protecting persons who are particularly vulnerable and persons from underserved communities from employment discrimination.” It also addresses the growth of virtual workplaces and social media to include examples of how employment-related harassment can occur in a digital environment.
“As we commemorate this year’s 60th anniversary of the Civil Rights Act of 1964, the guidance will help raise awareness about the serious problem of harassment in employment and the law’s protections for those who experience it,” Ms. Burrows said in the statement.
Mr. Paxton has asked the court to vacate that April 29 guidance and prevent the Biden administration from issuing further guidance and other resources that are “contrary to law.”
“Yet again, the Biden Administration is trying to circumvent the democratic process by issuing sweeping mandates from the desks of bureaucrats that would fundamentally reshape American law,” Mr. Paxton said in a May 21 public statement. “Texas will not stand by while Biden ignores court orders forbidding such actions, and we will hold the federal government accountable at every turn.”
In an e-mail response to The Epoch Times, the EEOC noted that it doesn’t comment on litigation and referred any questions to the Department of Justice.
