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18 states sue the Biden administration over transgender worker protections

The GOP-led states argue that the Biden administration is unlawfully forcing employers to comply with workplace protections for transgender Americans.
Unisex bathroom sign
In the lawsuit, attorneys general from the 18 states argued that the new rules unlawfully force employers to recognize trans workers’ pronouns and permit trans employees to use restrooms and wear clothing that align with their gender identities. Barry Chin / Boston Globe via Getty Images file

Eighteen Republican-led states sued the Biden administration late Monday over new federal guidance that aims to protect transgender Americans from workplace discrimination.

In a lawsuit filed against the Equal Employment Opportunity Commission and the Department of Justice, attorneys general from the 18 states, led by Tennessee, argued that the federal agency’s new rules unlawfully force employers to recognize trans workers’ pronouns and to allow trans employees to use restrooms and wear clothing that aligns with their gender identities. 

They contend that in doing so, the EEOC wrongfully expanded Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex, among other categories. 

“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,” Tennessee Attorney General Jonathan Skrmetti said in a statement on Monday. “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.”

The EEOC is a bipartisan agency under the Department of Labor that was created by the Civil Rights Act of 1964 to administer and enforce anti-discrimination protections in the workplace. It is led by five president-appointed commissioners, with the party in power having three commissioners. 

In his statement, Skrmetti said the new guidance “misuses federal power to eliminate women’s private spaces and punish the use of biologically-accurate pronouns, all at the expense of Tennessee employers.” 

In addition to Tennessee, plaintiffs in the suit include the states of Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia and West Virginia.

A spokesperson for the EEOC referred NBC News to the Department of Justice for comment. A spokesperson for the DOJ did not immediately return a request for comment.

The EEOC’s new rules regarding trans workers are part of a wider package of guidelines on workplace harassment the agency released last month. 

Its guidance around workplace harassment of LGBTQ people cites a 2020 Supreme Court ruling, Bostock v. Clayton County, which found that workplace discrimination on the basis of sexual orientation or gender identity qualifies as sex-based discrimination, which is prohibited under Title VII.

The 18 attorneys general mention the 2020 landmark ruling in their lawsuit but say they interpret the decision differently than the EEOC. They argue that the Supreme Court did not intend to force employers to take up accommodations with respect to workers’ gender identity and sexual orientation. Instead, they contend that the court’s ruling was narrower, preventing employers from firing workers on the basis of their sexual orientation or gender identity.

“Neither Title VII, nor Bostock, nor any other federal precedent gives EEOC license to impose a gender-identity accommodation mandate, which flunks major-question scrutiny and raises constitutional concerns,” the suit reads. 

Earlier this month, a group of over 20 Republican-led states, including 14 of the states that sued the EEOC on Monday, filed a lawsuit against the Education Department for its new rules regarding protections for trans students in federally funded schools. And last month, a group of Republican-led states filed a similar lawsuit against the EEOC over its new rules for allowing workers time off for abortions. 

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