Texas Sues Biden Administration Over Transgender Worker Right Guidance

Texas Attorney General Ken Paxton speaks during the launch of an antitrust investigation into large tech companies outside of the Supreme Court in Washington on Sept. 9, 2019. Mandel Ngan/AFP via Getty Images

The state of Texas sued the Biden administration on Sept. 20 over guidance issued this summer requiring employers to make certain exceptions for transgender workers.

Texas Attorney General Ken Paxton filed the lawsuit (pdf) against the Equal Employment Opportunity Commission, the commission’s chair Charlotte Burrows, and Attorney General Merrick Garland. Paxton argues that the guidance issued by the EEOC on June 15 this year “misstates the law” and that “Burrows did not even have authority to issue it.”

“Texas and its constituent agencies, including the Texas Department of Agriculture (TDA), have the sovereign right to set their own policies on bathroom usage, dress codes, and pronoun usage within their workplaces,” the lawsuit states. “The June 15 Guidance is invalid on its face.”

The EEOC and the Department of Justice did not respond to requests for comment.

On June 15, the EEOC issued a guidance document related to the recent Supreme Court decision in Bostock v. Clayton County. The Supreme Court ruled that the protections against sexual discrimination in the Title VII of the Civil Rights Act of 1964 apply to people with subjective gender identities.

Title VII applies to all private employers with 15 employees or more. The EEOC’s guidance went beyond the language in Title VII and staked a position on issues, including transgender access to bathrooms and that “repeatedly using the wrong name and pronouns to refer to a transgender employee” amounts to harassment.

“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,” Paxton 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. These backdoor attempts to force businesses, including the State of Texas, to align with their beliefs is unacceptable.”

The lawsuit argues that the EEOC’s guidance is arbitrary and capricious while violating the First and Eleventh Amendments as well as Title VII itself. The plaintiffs further allege that the commission violated its own rules and failed to follow proper procedures before issuing it.

Paxton is asking the court to declare the guidance unlawful, block the defendants from enforcing it, and award the state of Texas attorneys’ fees.

A group of 20 state attorneys general sued the Biden administration in August over the issuance of interpretations of the Bostock v. Clayton County decision. The plaintiffs, led by Tennessee, argued that the EEOC and the Department of Education flouted “procedural requirements in their rush to overreach, issued ‘interpretations’ of federal antidiscrimination law far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit,” according to the lawsuit (pdf).