President Joe Biden’s appointees continue to push the radicalism that keeps his approval ratings at record lows. The Equal Employment Opportunity Commission has done it again with new rules to force speech of a specific type when people are at work.
The EEOC’s job is to apply federal law written by Congress pertaining to the workplace. Congress has written no new law about gender identity in the workplace. The EEOC also applies court decisions, but it has no mandate to go beyond the courts, dictating sweeping “rights” expansions supposedly found in legal decisions.
In new rules published April 29, the EEOC went beyond the dictates of Congress and courts on the matter of people who claim to be of a gender other than their biological sex. The order is arguably antithetical to other legislative and judicial decrees.
It says an employer who repeatedly uses a “name or pronoun inconsistent with the individual’s known gender identity” or who does not allow the use of “a bathroom or other sex-segregated facility consistent with the individual’s gender identity” has committed unlawful harassment rooted in sex-based discrimination.
Never mind that women feel unsafe or sexually harassed by the presence of biological men in their bathroom. Never mind that an employer or supervisor has faith-based objections to calling a man a woman (or vice versa). Under its new rule, this EEOC can file a sex discrimination suit against an employer for the supposed crime of making a factual statement about a person’s sex.
The new rule tries to apply the 2020 Supreme Court decision in Bostock v. Clayton County, which held that hiring or firing could not be based on a person’s gender identity or sexual orientation. But it is a misapplication of that decision. Bostock was a ruling on whether someone could be employed, not on the conditions of employment. Justice Neil Gorsuch, who authored the opinion, explicitly wrote that critics “say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today but none of these other laws are before us.” For emphasis, he repeated: “We do not purport to address bathrooms, locker rooms, or anything else of the kind.”
The EEOC is improperly anticipating what it perhaps assumes the Supreme Court will at some point declare. Until the high court has ruled on sex-segregated bathrooms at work, the EEOC should not take a side on the issue.
This is especially true when the Left and transgender activists have lost so many other decisions about religious liberty or sex-based distinctions in similar contexts. Again and again in recent years, the justices (or appeals court judges) have ruled that people or employers with faith-based objections to sex-related behavior may refuse to support those behaviors. Last summer, a second appeals court struck down a Biden administration “transgender mandate.” In that case, the 8th U.S. Circuit Court of Appeals ruled the government may not force doctors to perform “gender-transition procedures against their consciences.”
For now, the Supreme Court has declined a plea to block an Idaho law that prohibits gender-transition medicine or surgery for minors.
In sum, the courts are still navigating transgender questions. The EEOC is out of line if it makes new rules that go beyond what the court has decided and without a change by Congress in the laws that the EEOC’s rulemaking is meant to implement.
As policy, mandatory access for men to women’s locker rooms is a terrible idea. It is an invasion of women’s privacy and a threat to their safety.
The EEOC rule surely will be challenged in court. It richly deserves to lose.