Tennessee Attorney General Jonathan Skrmetti led a coalition of 18 states in filing a lawsuit against the Equal Employment Opportunity Commission (EEOC) after it published its new sexual harassment guidance extending Title VII’s protections against sex-based discrimination to cover gender identity.
In April, the EEOC released its new guidance, which insisted that employers are liable under Title VII if they or another employee use the incorrect name or pronoun of an employee’s preferred gender identity.
Further, the employer can be liable for limiting access to bathrooms and other facilities, such as showers or locker rooms, based on biological sex and not on gender identity.
If a customer or other non-employee fails to use an employee’s preferred pronouns or refuses to share a restroom with someone of the opposite sex, the employer can also be sued.
Skrmetti said:
“In America, the Constitution gives the power to make laws to the people’s elected representatives, not to unaccountable commissioners, and this EEOC guidance is an attack on our constitutional separation of powers.”
“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.”
On January 20, 2021, Biden signed an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”
That order declared:
“Laws that prohibit sex discrimination…prohibit discrimination on the basis of gender identity or sexual orientation.”
Biden directed federal agencies to “fully implement statutes that prohibit sex discrimination.”
The Daily Wire noted that in response to the order, Biden’s Department of Education and the Equal Employment Opportunity Commission issued guidance documents providing their interpretations of Title IX of the Education Amendments Act of 1972 and Title VII of the Civil Rights Act of 1964.
On June 15, 2021, the EEOC issued a “Technical Assistance Document” that supposedly explained employers’ obligations regarding dress codes, bathrooms, locker rooms, showers, and the use of preferred pronouns or names.
On June 23, 2021, the Department of Education issued a “Dear Educator” letter to notify those subject to Title IX of the Department’s Interpretation.
The “Dear Educator” letter reiterated that “Title IX’s protection against sex discrimination encompasses discrimination based on sexual orientation and gender identity” and explained that the Department “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity.”
Months later, on August 30, 2021, the state of Tennessee led a coalition of states and filed a complaint challenging the legality of the guidance documents.
In 2022, the United States District Court Eastern District of Tennessee granted the injunction.
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