On Monday, Tennessee Attorney General Jonathan Skrmetti led a coalition of 18 states in filing a lawsuit against the Equal Employment Opportunity Commission (EEOC) after it released new sexual harassment guidance extending Title VII’s protections against sex-based discrimination to cover gender identity.
On April 29, the EEOC released its new guidance, which insists an employer may be liable under Title VII if they or another employee use a name or pronoun inconsistent with an employee’s preferred gender identity. Not only that, but an employer can be liable by limiting access to a bathroom or other sex-segregated facility, such as a shower or locker room, 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 could also be sued.
“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 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.”
On January 20, 2021, the day President Biden was inaugurated, he signed an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” That order declared that “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” consistent with the administration’s interpretation.
In response to the executive 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” which purported to explain employers’ obligations with respect to dress codes, bathrooms, locker rooms, showers, and use of preferred pronouns or names.
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On June 23, 2021, the Department of Education issued a “Dear Educator” letter to directly 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.”
On August 30, 2021, the state of Tennessee led a coalition of states and filed a complaint challenging the legality of the guidance documents issued by the Department and the EEOC in response to Biden’s executive order. In 2022, the United States District Court Eastern District of Tennessee granted the injunction.