The EEOC reverses course on transgender policy

It's good news, up to a point

Title VII of the Civil Rights Act was not intended to bar discrimination against transgender individuals. Nor do I believe the statue’s language bars it or, for that matter, bars discrimination against gays or lesbians.

However, the Supreme Court, in an opinion written by Justice Gorsuch, has ruled otherwise. Thus, it’s the law of the land that employers cannot discriminate in employment against people based on transgender status.

The U.S. Equal Employment Opportunity Commission (EEOC) is charged with enforcing laws that prohibit employment discrimination. It has the power to sue employers for alleged discrimination. Harassment can, under some circumstances, constitute discrimination.

During the Obama and Biden administrations, the EEOC pursued an aggressive agenda on behalf of transgender individuals. Last year, for example, it issued “guidance” specifying that deliberately using the wrong pronouns for an employee, or refusing them access to bathrooms corresponding with their gender identity, constitutes a form of harassment and is unlawful under Title VII.

The EEOC also filed lawsuits to enforce these positions. Some of the suits allege discriminatory discharge; some allege harassment; some both.

But with a new sheriff in town, the EEOC intends to rescind its “guidance” and has moved to dismiss the transgender discharge and harassment cases, or intends to so move. These reversals are designed to conform to an executive order issued by Donald Trump that states the government will recognize only two “immutable” sexes — male and female.

These developments raise an ontological question of sorts. If there are only two sexes — if the “T” in LGBTQ does not exist — then how can discrimination against “Ts” exist? Yet, the Supreme Court has ruled that such discrimination not only exists, it’s illegal. How can this be squared?

I think it can easily be squared. “Ts” do exist. They may not be a separate sex (or gender), but they are a “status,” the term Justice Gorsuch repeatedly used in his landmark opinion. (Gorsuch never said there are more than two sexes and seemed to assume, arguendo, that there are only two.) And, as interpreted by Gorsuch in his majority opinion, Title VII protects those with that status against employment discrimination.

The fact that Title VII has been held to protect those with transgender status from discrimination doesn’t mean the EEOC has to bring suits to enforce the prohibition. The law permits private suits by individuals who have filed a charge of discrimination and have received a notice of right to sue from the government. They have a means of remedying discrimination without the EEOC suing.

The law requires the EEOC to process charges of discrimination brought by “Ts.” using its regular procedures. (I assume the EEOC will continue to do so, though there may be some confusion about this). But it does not require the agency to sue on their behalf. And, just as the Biden administration dismissed some actions brought by its predecessor — a suit against Yale over racial discrimination in admissions, for example — the EEOC can move to dismiss suits brought by the prior regime.

Should the EEOC move to dismiss the transgender discrimination cases in question? Without knowing the facts, I can’t say with specificity.

As a general matter, I think the EEOC is right to dismiss cases where the alleged violation is harassment based on pronoun usage, for example. Even if this misuse (or other low-level harassment and “microaggressions”) would constitute unlawful behavior under the case law, I don’t see why taxpayer money should be spent on the matter. Let the allegedly aggrieved individual find a private attorney to pursue the case.

At the other end of the spectrum is a case where the employer fires an employee simply because of his or her transgender status. That’s plainly unlawful and, to me, highly improper. I don’t mind my tax dollars being spent to challenge this.

Nor would pursuing the case be inconsistent with the Trump administration’s position that there are only two sexes. If “Ts” are a protected class under Title VII — and the Supreme Court says they are — they are protected from unlawful discharge. That there are only two sexes, as the executive order insists, is irrelevant.

I’m glad the Trump administration is getting out of the pronoun policing business. I’m glad it wants to keep boys and men from competing in scholastic sports against girls and women. I’m glad it wants to protect the privacy and safety of girls and women in other respects.

However, I hope the EEOC’s apparent willingness to countenance the firing of people because of their transgender status does not encourage employers to engage in this unlawful practice.