Saturday, October 1, 2022: EEOC Enforcement of Controversial “Quickie” Transgender “Guidance” Blocked, Nationwide
A federal district court in Texas last week issued a nationwide injunction that vacated and set aside sub-regulatory “guidance” documents the U.S. Equal Employment Opportunity Commission (EEOC) had published on June 15, 2021, upon the first-year anniversary of the Bostock v. Clayton County, 140 S. Ct. 1731 (2020) case decision. The Texas Court also enjoined in the same decision a similar document the U.S. Department of Health and Human Services (HHS) had issued earlier this year.
Both agencies had rammed their guidance through to publication over objections, but dutiful to and in response to President Biden’s Executive Order (E.O.) 13988. That E.O. sought to enforce and expand upon the U.S. Supreme Court’s holding in Bostock.
The Texas Court’s injunction followed and enlarged a similar injunction a Tennessee Court had earlier issued covering 20 states at issue in that litigation and addressing the same guidance documents. We wrote about that decision in a July 15, 2022, WIR story titled “Federal District Court Judge In Tennessee Blocked Enforcement Of Controversial EEOC & DOE Guidance Documents On Bostock.”
How We Got Here
The EEOC’s 2021 informal website “guidance” immediately created controversy, on two different grounds: one procedural and one substantive. First, the procedural dispute was that the “guidance” stated that it was merely celebrating the anniversary of the Bostock case decision and only refreshing the readers’ recollection about what the SCOTUS had held in that case a year prior. Nonetheless, and to the contrary, the “guidance” then went on to seamlessly address policy issues that went beyond the holding of the SCOTUS’ Bostock case decision. Indeed, the “guidance” represented to be from “The Commission” addressed and resolved sensitive and controversial issues not even before the Bostock Court for decision.
Second, the substantive dispute was that the SCOTUS had expressly reserved judgment and had specifically written into the body of its Bostock decision that there were several collateral questions surrounding the two termination issues at issue in the case, but which were not before the Court for resolution and were ones the SCOTUS was specifically NOT addressing. (What was at issue before the Bostock Court were the questions whether Title VII of the 1964 Civil Rights Act protected transgender, and/or gay and lesbian employees under Title VII which makes discrimination “because of sex” unlawful, among other things). Readers of the guidance were nonetheless not apprised of the SCOTUS’ express reservation of several issues the guidance addressed. Rather, readers of the guidance were left with the misimpression that the Bostock Court had in fact addressed and decided these “extra issues” the Commission wove into its report of the Bostock decision. Moreover, the Commission’s “guidance” addressed fresh policy issues the Commission had NOT sat post-Bostock to consider and interpret in a collegial body meeting of the 5-Member bi-partisan Commission.
It is thus significant that the Federal Court last week based its decision to enjoin the Commission’s so-called Bostock guidance on his conclusion that the guidance did NOT properly interpret the SCOTUS’ Bostock decision (i.e., the very substantive disagreement the three Republican Commissioners at the EEOC had with the content of the Commission’s “guidance”):
U.S. District Court Judge Matthew Kacsmaryk of the Amarillo Division of the Northern District of Texas determined last week that the guidances were unlawful because they improperly interpreted the Supreme Court’s decision in Bostock. He concluded that while Bostock established that Title VII prohibits discrimination against employees based on their sexuality or gender identity, it does not necessarily protect “all correlated conduct.”
We wrote about that procedural and substantive “dust-up” which erupted when the three Republican Commissioners of the Commission (constituting the Majority on the Commission) learned what Commission Chair Charlotte Burrows (D-Biden) had represented to the public and had written without their knowledge or consent as the Chair sought to “steal a march” on the Republicans. Our Blog discussing this issue went viral: “Dispute Breaks Out at EEOC Between Republican Commissioners and the Democrat Chair Over Whether the Chair May Issue Policy Guidance Without a Commission Vote: Control of Commission Policy at Stake…And the Transgender Bathroom Issues are Back!” As news of this lack of bi-partisan cooperation and the Chair’s breach of trust and open disrespect for her Republican colleagues leaked out of the Commission and became public knowledge, it provoked much discussion within the nationwide EEO community. And we were reminded again at the WIR that the EEO Community feels very strongly about the “potty issues” …on both sides of the bathrooms…and that the Community also cares that the Commission conduct itself with decorum and integrity, and not mislead the public.
Deep Background on the Issues
On June 15, 2021, exercising her prerogative as Chair to “administer” the EEOC, Charlotte Burrows unilaterally issued a “technical assistance document” entitled “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity”).
That document noted that:
- prohibiting a transgender person from dressing or presenting an appearance consistent with the person’s gender identity was unlawfully discriminatory under Title VII;
- employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity;
- intentional or repeated use of the wrong name and pronouns in reference to a transgender employee would create a hostile work environment that is discriminatory based on gender identity; and
- an employer may not use a customer or client’s preferences as justification for discriminatory action against employees who have a different sexual orientation or gender identity.
More recently, on March 2, 2022, the Department of Health and Human Services (HHS) Office of Civil Rights issued a “Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy.” That guidance provided that denials of health care based on gender identity violate Section 1557 of the Affordable Care Act. It also stated that healthcare providers are not required to disclose private patient information related to gender-affirming care.
In July, we reported how a federal district court judge in Tennessee blocked enforcement of the EEOC Guidance along with a similar guidance document from the Department of Education. The district court’s ruling in Tennessee v U.S. Dept of Educ. (E.D. Tenn., Case No. 3:21-cv-308, July 15, 2022) sided with 20 states in finding that the federal documents at issue were substantively and procedurally deficient under the Administrative Procedure Act (APA). We previously discussed the states’ assertions in this suit here. The court’s preliminary injunction temporarily stopping the enforcement of the guidances at issue in that case, will remain in effect pending the final resolution of this matter, or until further orders from this Court, the United States Court of Appeals for the Sixth Circuit (Cincinnati), or the Supreme Court of the United States.
In September 2021, Texas Attorney General Ken Paxton, a Republican seeking reelection this year, sued the EEOC in the federal court for the Northern District of Texas. He asked the court to vacate and set aside the EEOC guidance, asserting that it “misstates the law, increasing the scope of liability for the State in its capacity as an employer – and [EEOC Chair Charlotte] Burrows did not even have authority to issue it.” The Texas AG argued that Bostock did not address whether workplace policies on sex-segregated bathrooms, locker rooms, and dress codes violate Title VII.
AG Paxton amended his lawsuit in March 2022 to add his assertions that the new HHS guidance document incorrectly states that doctors and other staff members at facilities that receive federal funds who comply with obligations to report suspected child abuse to State authorities may be in violation of federal law. The defendants in the lawsuit are the EEOC, Chair Burrows, U.S. Attorney General Merrick Garland, the HHS, HHS Secretary Xavier Becerra, and HHS Office of Civil Rights Director Lisa Pino.
Judge Characterized the Issue as “Status vs Conduct”
In the judge’s view, “… [t]he crux of the parties’ disagreement distills down to one question: is the non-discrimination holding in Bostock cabined to “homosexuality and transgender status” or does it extend to correlated conduct – specifically, the sex-specific: (1) dress; (2) bathroom; (3) pronoun; and (4) healthcare practices underlying [the documents at issue]” (emphasis in the court’s opinion). He ruled that this issue was not decided in Bostock; as such the EEOC and HHS guidances impermissibly extended beyond the parameters set forth in that ruling.
Commissioner Lucas’ Individual Statement Slammed “Substantive and Administrative Overreach”
“Agencies are not all-powerful. Rules and limits matter,” EEOC Commissioner Andrea R. Lucas posted in an individual statement on Thursday via both her Twitter and LinkedIn accounts.
“As I have stated previously, I was disappointed that the EEOC’s Chair unilaterally issued the publication in question, without a vote and over the Commission majority’s objections,” Lucas stated. “This was policy masquerading as an innocuous ‘fact sheet,’ rammed through without regard for the limits of Title VII, administrative law (the APA), Supreme Court precedent, or the EEOC’s own procedures and voting requirements.”
“Given the substantive and administrative overreach here, I am pleased to see the federal court’s nationwide order, just as I was pleased in July to see a different federal court, in a separate lawsuit challenging the document, issue a temporary injunction blocking the unilateral policy document in twenty states,” the Commissioner continued.
She also highlighted other important aspects of the new Texas federal court decision not discussed above. Judge Kacsmaryk ruled that “the EEOC directives were invalid because Congress did not grant the EEOC the authority to issue substantive (non-procedural) rules addressing Title VII topics,” Commissioner Lucas noted. In addition, the judge concluded that the EEOC “violated administrative law by failing to follow Title VII’s requirements, EEOC agency policies and procedures, and publishing and comment requirements for substantive rules.”
“The federal district court also squarely rejected the EEOC’s reliance on pre-Bostock EEOC ‘federal sector’ cases on topics like pronouns, dress codes, and bathroom usage to justify EEOC “technical assistance” document – ruling that those federal sector decisions were ‘irrelevant’ because they did not address private-sector and state employees, and only applied to federal employees who are subject to separate legal provisions,” Commissioner Lucas pointed out. Therefore, the court ruled that “the Administration’s implementation of these rules violated Title VII, the Administrative Procedure Act [(APA)], and even the EEOC’s own self-imposed procedural requirements.”
The Administrative Procedure Act (APA) governs the process by which federal agencies develop and issue regulations. Judge Kacsmaryk also ruled that the HHS guidance was “arbitrary and capricious” in violation of the APA.
If the EEOC continues with “substantive and administrative overreach” it “risks further black eyes for the agency in the form of judicial rebukes,” Commissioner Lucas warned.
Agency Comments Limited to Cautionary Notes
As of our WIR deadline, neither agency had issued a statement reacting to the ruling. Nevertheless, the EEOC amended its webpage on the document at issue to inform the public of the Tennessee federal district court injunction and the new Texas federal district court decision vacating the guidance. HHS added a note to the top of the webpage on its document at issue, mentioning that the Texas federal district court vacated the document. It also notes that “HHS is evaluating its next steps in light of that judgment but is complying with it.”
How Could the EEOC Resurrect Its Guidance?
We have reported that President Biden’s nomination of Kalpana Kotagal to serve as an EEOC Commissioner is a “Political Rugby Scrum in Progress” with the Commission majority at stake. Should a Democratic majority occur, the EEOC might re-issue the guidance following the proper notice and comment rulemaking procedures. Meanwhile, plaintiffs may still adopt the same theories offered in the now-vacated guidance to pursue their individual lawsuits.