Twenty states are suing the Biden administration for implementing expanded LGBT nondiscrimination provisions that the plaintiffs believe run afoul of federal law as well as U.S. Supreme Court precedent.
A lawsuit was filed by Tennessee Attorney General Herbert Slatery, a Republican, in the U.S. District Court for the Eastern District of Tennessee Knoxville Division Monday.
The Republican attorneys general of Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia also signed onto the lawsuit as plaintiffs.
Defendants in the case are the U.S. Department of Education, Secretary of Education Miguel Cardona, the Equal Employment Opportunity Commission, EEOC Chair Charlotte Burrows, the U.S. Department of Justice, Attorney General Merrick Garland and Assistant Attorney General for Civil Rights Kristen Clarke.
“This case is about two federal agencies changing law, which is Congress’ exclusive prerogative,” Slatery said in a statement. “The agencies simply do not have that authority.”
The plaintiffs allege that policies implemented by the Biden administration have caused “irreparable harm” by threatening to withhold federal funding if they do not comply with the new directives.
The policies at issue stem from an executive order signed by President Joe Biden on his first day in office asserting that “the Title IX Education Amendments of 1972,” originally designed to prevent discrimination based on sex in education, also prevent discrimination based on sexual orientation and gender identity.
Additionally, the lawsuit challenges the Department of Education’s announcement that it will “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”
As detailed in the lawsuit, the Department sent a “dear educator” letter to Title IX recipient schools across the nation notifying them of the new interpretation of federal civil rights law. A fact sheet accompanied the letter.
The lawsuit expressed particular concern about the portion of the fact sheet alleging that preventing a trans-identified male from using the women’s restroom and preventing a trans-identified male from trying out for girls’ cheerleading constitutes sex discrimination.
The EEOC compiled a similar technical assistance document, illustrating examples of what constitutes discrimination based on the executive branch’s interpretation of federal civil rights law.
The document maintains that “prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.”
Acknowledging that employers “have the right to have separate, sex-segregated bathrooms, locker rooms, or showers for men and women,” the commission’s position is that “employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.”
The EEOC document states that “If an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.”
The EEOC characterized the use of “pronouns or names that are inconsistent with an individual’s gender identity” as an example of harassment.
The Biden administration repeatedly cited the 2020 U.S. Supreme Court decision Bostock v. Clayton County to justify its policies. In Bostock, the Supreme Court ruled 6-3 that firing a gay or transgender employee because of their sexual orientation or gender identity violated Title VII of the Civil Rights Act of 1964.
Slatery accused the agencies of misconstruing Bostock “by claiming its prohibition of discrimination applies to locker rooms, showers, and bathrooms under Title IX and Title VII when the Supreme Court explicitly said it was not deciding those issues in Bostock.”
The lawsuit also contends that the agencies violated the Administrative Procedure Act.
“The Administrative Procedure Act requires agencies to engage in ‘notice and comment’ for legislative rules,” the lawsuit noted. “The Department’s Interpretation and the Fact Sheet are legislative rules because they ‘intend to create new laws, rights, or duties’ and thus should have been subject to notice and comment.”
The lawsuit concluded that “because the Interpretation and Fact Sheet are legislative rules that were adopted without the required notice-and-comment procedures, they are unlawful and should be ‘set aside.’”
The legal complaint also described the actions of the agencies as “arbitrary and capricious” and alleges that the executive branch’s policies violated the First and 10th Amendments and exceed statutory authority.
This lawsuit is not the first attempt by this group of state law enforcement officials to challenge the policies.
In July, the group of 20 attorneys general who filed the lawsuit, along with Texas Attorney General Ken Paxton, sent a letter to Biden expressing concern about the “administrative action related to Bostock v. Clayton County.”
Ryan Foley is a reporter for The Christian Post. He can be reached at: firstname.lastname@example.org