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18 states challenge rule including gender identity harassment in Title VII


KNOXVILLE, Tenn. (BP) – A coalition of 18 states filed suit May 13 against the Equal Employment Opportunity Commission for including gender identity in Title VII protections against sex discrimination.

The states oppose EEOC guidance requiring employers to call transgendered employees by their preferred pronouns and to allow them to use facilities such as bathrooms, locker rooms and showers that align with their chosen gender.

The Southern Baptist Ethics & Religious Liberty Commission (ERLC), which opposed the guidance before the EEOC finalized it, welcomed the states’ action.

“As we argued in our comments, ‘By requiring pronoun usage or the usage of names that do not align with a man or woman’s biological sex, the EEOC is requiring that many employees forsake their conscience by repeatedly caving to an ideology forced upon them, thus compelling them to betray their deeply held religious beliefs regarding what is true and good,’” ERLC Policy Director Hannah Daniel told Baptist Press.

“It is good to see states challenging this guidance and upholding the rights of people of faith to not only hold to traditional beliefs about gender and sexuality but also to express those beliefs in the workplace.”

Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Utah, Virginia and West Virginia are plaintiffs in the case filed in U.S. District Court for the Eastern District of Tennessee.

Tennessee Attorney General Jonathan Skrmetti, who led the coalition in filing the lawsuit, described the EEOC guidance as an attack on constitutional separation of powers.

“In America, the Constitution gives the power to make laws to the people’s elected representatives, not to unaccountable commissioners,” Skrmetti said. “When, as here, a federal agency engages in government over the people instead of government by the people, it undermines the legitimacy of our laws and alienates Americans from our legal system.

“This end-run around our constitutional institutions misuses federal power to eliminate women’s private spaces and punish the use of biologically-accurate pronouns, all at the expense of Tennessee employers.”

Under EEOC guidance, approved April 29 by a 3-2 vote of the commission, employers could be held liable for various acts deemed discriminatory, whether initiated by the employer, employees, customers or other non-employees in acts related to the transgender worker’s employment.

“This new guidance from the EEOC threatens religious liberty and the consciences of millions of people of faith,” Daniel said, “as it redefines ‘sex-based harassment’ to include matters related to sexual orientation and gender identity.”

The states challenge EEOC’s independent structure as a violation of Article II of the U.S. Constitution and the separation of powers, and termed the enforcement document as “arbitrary and capricious.”

The lawsuit asks the court to vacate the guidance and to stipulate that Title VII “cannot constitutionally be read to authorize the Enforcement Document’s gender-identity mandate.”

Among the two EEOC commissioners who voted against the guidance, Commissioner Andrea R. Lucas accused the EEOC of attacking the very rights it is meant to uphold.

“Biological sex is real, and it matters. Sex is binary (male and female) and is immutable,” Lucas said in her response, which the states entered as a supporting document to the lawsuit. “In the words of Justice Ginsburg for the Supreme Court in United States v. Virginia, ‘[p]hysical differences between men and women … are enduring’: The two sexes are not fungible. It is not harassment to acknowledge these truths — or to use language like pronouns that flow from these realities, even repeatedly.”