21 state attorneys general push back on Biden’s LGBT guidance, warn religious liberty is in peril

U.S. President Joe Biden gestures as he speaks on the anniversary of the start of the COVID-19 pandemic, in the East Room of the White House in Washington, D.C. on March 11, 2021.
U.S. President Joe Biden gestures as he speaks on the anniversary of the start of the COVID-19 pandemic, in the East Room of the White House in Washington, D.C. on March 11, 2021. | AFP via Getty Images/MANDEL NGAN

A group of 21 state attorneys general have signed on to a letter to the Biden administration, denouncing recent efforts to expand LGBT policies in schools that they believe would circumvent religious liberty protections and free speech rights.

Last month, the Equal Employment Opportunity Commission and the U.S. Department of Education sent out guidance for states to implement the 2020 U.S. Supreme Court ruling Bostock v. Clayton County.

In the 6-3 ruling from June of last year, the Supreme Court majority concluded that federal Title VII civil rights law banning employment discrimination on the basis of “sex” applied to “sexual orientation” and “gender identity.”

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However, the attorneys general sent a letter last week to President Joe Biden explaining that they took issue with the EEOC and Department of Education guidance, stating in part that the administration was misapplying the Bostock ruling.

“The Court in Bostock narrowly addressed employment termination and explicitly refrained from addressing ‘sex-segregated bathrooms, locker rooms, and dress codes,’” reads the letter.

“Similarly, Bostock did not provide any basis for a claim that using biologically accurate pronouns could violate the law. To the contrary, the First Amendment protects the right to ascribe pronouns to others based on their sex.”

The letter asserts that the EEOC guidance “comes across as an effort to leverage the authority of the federal government to chill protected speech disfavored by your administration.”

“The EEOC guidance also appears to ignore two of three protections provided to religious employers, acknowledging the Religious Freedom Restoration Act (RFRA) but nothing else,” continued the attorneys general.

Bostock recognized that three religious liberty protections limit its scope: RFRA, Title VII’s express statutory exception for religious organizations, and the First Amendment’s protections of ‘the employment relationship between a religious institution and its ministers.’”

The attorneys general letter went on to argue that the Education Department’s “Notice of Interpretation” guidance from last month “fares no better” regarding Title IX interpretations.

“The Notice of Interpretation is also substantively flawed. The Supreme Court expressly limited its decision in Bostock to Title VII,” said the letter.

“The Court emphasized that Title IX and ‘other federal or state laws that prohibit sex discrimination’ were not ‘before’ the Court and the Court did ‘not prejudge any such question’ under those statutes.”

The letter concluded that, by approving the guidance by EEOC and the Department of Education, the Biden administration “harms the rule of law and undermines the legitimacy of these executive agencies.”

The letter was championed by Tennessee Atty. Gen. Herbert H. Slatery III, and included among its cosigners the attorneys general representing the states of Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas and West Virginia.

“Federal agencies do not have the authority to unilaterally change laws. That is the exclusive prerogative of Congress,” said Slatery in a statement released last Wednesday.

“Actions like these exclude the voices, votes and participation of the people, and their representatives, which is neither right nor constitutional.”

On June 15, the EEOC announced that it was providing new resources to promote LGBT policies or "LGBT anti-discrimination" in employment in response to the Bostock decision from last year.

These included consolidating resources to explain the extent and scope of the decision and how the Biden administration believes it should be implemented by state governments, schools, private corporations and religious organizations regarding claims of employment discrimination.

“All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” said EEOC Chair Charlotte A. Burrows in a statement that was part of the June announcement.

“The new information will make it easier for people to understand their rights and responsibilities related to discrimination based on sexual orientation and gender identity.”

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