Texas AG Challenges Bathroom, Dress Code Exemptions for LGBT Employees

The Texas attorney general's office filed a complaint seeking to strike down a federal guidance that includes several protections for LGBT employees, including a rule requiring employers to allow workers to use bathrooms that match their gender identity

The complaint, which was first reported by Bloomberg Law, was filed Monday and claims that a guidance issued June 15 by the U.S. Equal Employment Opportunity Commission (EEOC) misinterprets the U.S. Supreme Court's ruling Bostock v. Clayton County, GA.

In the complaint, Texas Attorney General Ken Paxton writes that Texas and its agencies, including the Texas Department of Agriculture (TDA), have the right to make their own policies surrounding bathrooms, dress codes and pronoun usage.

The complaint claims the guidance "misstates the law, increasing the scope of liability for the State in its capacity as an employer."

The guidance in question said employers may not ban workers from dressing consistent with their gender identity and that while employers can have separate bathrooms, they cannot ban employees from using the bathroom that correspondents to their gender identity.

It also states that, "intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment."

The guidance is based on the 2020 Bostock ruling, which stated employees cannot be fired on the basis of being LGBT. The court for the first time ruled that civil rights law prohibiting workplace discrimination on the basis of sex also protects employees based on their sexual orientation or gender identity.

However, the complaint argued that the guidance is not backed up by the court's ruling, which Paxton called "far narrower," not addressing the issues of pronoun usage or bathrooms.

"Bostock explicitly disclaimed that it was deciding whether 'sex-segregated bathrooms, locker rooms, and dress codes' would violate Title VII," the complaint reads. "Nor did the Court ever address the issue of pronouns."

It says that the TDA interprets sex to mean biological sex, rather than gender identity. The complaint says, "If any employee dressed as a member of the opposite sex, TDA would consider such conduct to be a violation of its standards."

It also says the TDA would reject requests for "any employee wanted to use the bathrooms designated for the opposite sex" or any employee who "wanted TDA to require other employees to use pronouns based on gender identity."

In August, a coalition of 20 GOP-led states filed a lawsuit challenging the guidance, also arguing that the Supreme Court ruling did not extend to sex-segregated areas in the workplace, Reuters reported.

They argued that agency exceeded its authority by issuing the guidance, saying it violates the 10th Amendment of the U.S. Constitution by "intruding on states' authority over privacy expectations in the workplace and in schools," according to Reuters.

Newsweek reached out to the attorney general's office and the EEOC for comment Monday afternoon but had not heard back by publication. This story will be updated with any response.

Pride Flags
The Texas Attorney General is challenging an EEOC guidance related to LGBT discrimination including pronouns, bathrooms and dress codes. Here, pride flags are seen in New York City in June 2020. Dimitrios Kambouris/Getty Images