In response to new federal rules on pronouns and bathrooms based on gender identity, 18 state attorneys general are suing the U.S. Equal Employment Opportunity Commission.
The lawsuit, led by Tennessee Attorney General Jonathan Skrmetti, a Republican, was filed Monday in U.S. District Court for the Eastern District of Tennessee.
“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,” Skrmetti said in a public statement.
The Daily Signal first reported last month that the Equal Employment Opportunity Commission published guidance determining that an employer would be guilty of harassment for requiring someone to use a restroom that comports with his or her biological sex, or for referring to someone by a personal pronoun that the person doesn’t want used.
The guidance, which the EEOC adopted on a party-line vote of 3-2, would determine how the commission would handle an employee complaint on the matter and also could affect other employee litigation as the formal federal policy.
EEOC has 2,331 employees, according to its 2023 annual report.
Joining Tennessee in the lawsuit are Republican attorneys general from the states of Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia, and West Virginia.
“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,” Skrmetti, Tennessee’s attorney general, 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.”
The EEOC issued new sexual harassment guidance that extends Title VII’s prohibition of sex-based discrimination to cover gender identity. Title VII forbids employment discrimination based on race, color, religion, sex, and national origin. It applies to any employer, public or private, with more than 15 employees.
Under this guidance, an employer may be responsible under Title VII if the employer, or another employee, uses a name or personal pronoun other than the one an employee prefers for his or her gender identity, or limits access to a restroom or other sex-segregated facility that isn’t consistent with what the employee prefers to use.
This rule prevails regardless of the biological sex of the employee in question.
“Harassing conduct based on sexual orientation or gender identity 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,” EEOC’s new enforcement guidance says.
An EEOC spokesperson referred The Daily Signal to the Justice Department for comment on this report. A Justice Department spokesperson didn’t respond by publication time.
In a previous public statement, EEOC Chairwoman Charlotte Burrows, a Democrat, praised the enforcement guidance.
“Harassment, both in-person and online, remains a serious issue in America’s workplaces,” Burrows said shortly after the commission announced the guidelines. “The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.”
Joining Burrows to vote in favor of the updated harassment guidance were two other Democrats, Vice Chair Jocelyn Samuels and Commissioner Kalpana Kotagal. The commission’s two Republican members, Keith Sonderling and Andrea Lucas, voted against the guidance.
In 2021, Burrows attempted to unilaterally include such actions under what constitutes harassment through a press release, without public comment or a vote by the full commission.
However, a federal court in Tennessee enjoined the guidance from going forward in 2022. Another federal court in Texas vacated Burrows’ guidance altogether. The Equal Employment Opportunity Commission did not appeal the rulings.
Fred Lucas is chief news correspondent and manager of the Investigative Reporting Project for The Daily Signal. He is the author of “The Myth of Voter Suppression: The Left’s Assault on Clean Elections.” Send an email to Fred.