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Texas Sues EEOC Over LGBT Bathroom and Pronoun Guidance (1)

Sept. 20, 2021, 3:41 PMUpdated: Sept. 20, 2021, 5:57 PM

Guidance issued by the U.S. Equal Employment Opportunity Commission “misstates the law” to allow exceptions for LGBT employees from general workplace policies on bathrooms, dress codes, and locker rooms, Texas Attorney General Ken Paxton alleged in a federal lawsuit.

The June 15 EEOC guidance improperly interprets the U.S. Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County, GA, which decided that sexual orientation and gender identity discrimination is prohibited by federal law, according to a complaint filed Monday in the U.S. District Court for the Northern District of Texas.

“That guidance misstates the law, increasing the scope of liability for the State in its capacity as an employer—and Burrows did not even have authority to issue it,” the complaint alleges, referring to Democratic EEOC Chair Charlotte Burrows, who currently faces a 3-2 Republican majority on the commission’s leadership panel.

The lawsuit follows a separate legal challenge against the guidance filed by a coalition of 20 states in a Tennessee federal court last month. A cohort of Republican attorneys general, including Texas’s Paxton, also decried the guidance in a July letter to the White House.

The workplace civil rights agency issued the guidance on the anniversary of the Bostock ruling, addressing the controversial issue of workplace bathroom policies by linking to a 2015 EEOC ruling in a federal-sector discrimination matter. In that case, the agency sided with a transgender employee who was barred from using the restroom that matched her gender identity.

The Supreme Court’s Bostock ruling, however, left open legal questions on workplace policies pertaining to “sex-segregated bathrooms, locker rooms, and dress codes.”

“The bathroom, dress code, and pronoun policies targeted by the June 15 Guidance do not discriminate based on gender identity and therefore do not violate Bostock,” the complaint alleges.

EEOC leadership didn’t vote on the June 15 guidance, and the three Republican commissioners told Bloomberg Law that the technical assistance went beyond the reaches of the Bostock ruling.

Texas and its agencies, including the Texas Department of Agriculture, have the right to establish their own workplace policies, the complaint alleges.

“TDA has both unisex single-occupancy bathrooms and bathrooms that are designated by sex. It interprets ‘sex’ as referring to biological sex rather than gender identity,” the lawsuit says. “If any employee wanted to use the bathrooms designated for the opposite sex, TDA would reject such a request.”

Causes of Action: Substantive and procedural violations of Title VII of 1964 Civil Rights Act, including exceeding the scope of agency authority and failing to follow regulatory requirements; violation of the First and Eleventh amendments to the U.S. Constitution; various violations of the Administrative Procedure Act.

Relief: A court order declaring the guidance unlawful and vacating it, a preliminary and permanent injunction blocking enforcement of the guidance, and attorneys’ fees and costs.

Response: The EEOC declined to comment on the lawsuit.

Attorneys: The Texas attorney general is representing the state. The Justice Department will represent the EEOC.

The case is Texas v. EEOC, N.D. Tex., No. 2:21-cv-00194, complaint filed 9/20/21.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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