Republican Attorney General Derek Schmidt is opposing the Biden administration’s plans for applying new civil rights protections to the LGBTQ community following a historic U.S. Supreme Court decision last year.
Schmidt, a candidate for governor, signed on to a letter with 20 other attorneys general in their opposition to how the Equal Employment Opportunity Commission and the Department of Education are interpreting the court’s ruling.
The EEOC and the Education Department last month issued guidance for how they might apply the court’s ruling, which found that federal employment discrimination law protects LGBTQ workers.
The court found in three cases rolled together in one decision that Title VII of the Civil Rights Act of 1964 bars employers from firing someone because of their sexual orientation.
“The Supreme Court’s decision…is a historic milestone that resulted from the struggle, sacrifice, and vision of many brave LGBTQ+ individuals and allies who had championed civil rights for the LGBTQ+ communities,” EEOC Chair Charlotte A. Burrows said when the guidelines were issued last month.
“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,” Burrow said in a statement.
But the letter, authored by Tennessee Attorney General Herbert H. Slatery III, challenges the guidelines issued by each of the agencies in applying the court ruling.
The letter says the guidelines “flout required procedures and the rule of law and serve only to sow confusion among regulated entities.”
“Far from providing guidance and clarity as to the state of the law, the recent actions of the EEOC and (the Education Department) seek to rewrite the law without any of the procedural safeguards or democratic accountability required by our constitutional system,” the letter states.
“By unilaterally plunging ahead with these sweeping dictates, your administration harms the rule of law and undermines the legitimacy of these executive agencies.”
The attorneys general argued that the EEOC’s guidelines appeared to have been issued unilaterally by the chair of the EEOC without the input or approval of the other commissioners.
“The document simply appeared and gave the imprimatur of the federal government to a radically inaccurate construction of Title VII,” the letter said.
The letter says the EEOC guidelines, for instance, misconstrue and improperly apply the court’s decision to mean that employers must provide equal access to bathrooms, locker rooms or showers that correspond to the employee’s gender identity.
The attorneys general argue that the court narrowly addressed employment termination and explicitly did not address “sex-segregated bathrooms, locker rooms, and dress code.”
The court held “that an employer cannot fire a man who identifies as a woman if the employer would not fire a similarly situated woman who identifies as a woman,” the attorneys general wrote.
“A significantly different balance of interests distinguishes a man identifying as a woman from a man showering with women coworkers.
“If anything, (the court’s) logic confirms that separate showers and locker rooms for men and women are lawful since differentiating facilities based on sex does not involve treating an employee ‘worse than others who are similarly situated.'”
The Education Department referred questions to the EEOC. The EEOC said it wasn’t making new policy, but rather issuing “technical assistance.”
“The EEOC routinely provides technical assistance to assist the public in understanding their rights and responsibilities under the laws the EEOC enforces,” the agency said in a statement.
“The recently issued technical assistance on protections against employment discrimination based on sexual orientation or gender identity does not state new EEOC policy, but simply gathers in one place the commission’s prior positions on these issues along with a straightforward, accessible explanation of the Supreme Court’s decision.”
The states also took exception to guidance from the EEOC that said using pronouns inconsistent with an individual’s gender identity could be considered harassment.
The court did not “provide any basis for a claim that using biologically accurate pronouns
could violate the law,” they said in their letter.
“To the contrary, the First Amendment protects the right to ascribe pronouns to others based on their sex,” the letter said.
“With respect to pronouns, the EEOC’s guidance comes across as an effort to leverage the authority of the federal government to chill protected speech disfavored by your administration,” they said.
The letter also objected to the Department of Education’s interpretation that Title IX’s ban on discrimination in education should include sexual orientation and gender identity following the Supreme Court’s decision.
“In reality, (the department) is attempting to rewrite Title IX and impose significant new obligations on educational institutions without adhering to any of the required procedures,” the letter states.
The attorneys general say the Supreme Court expressly limited its decision on discrimination in employment law covered by Title VII and that other laws prohibiting discrimination were not covered by its ruling.
A comment wasn’t immediately available from Schmidt, who had sided with a Michigan funeral home that had fired a transgender employee in the case before the U.S. Supreme Court.
Democratic state Rep. John Carmichael, the ranking member on the House Judiciary Committee, said the attorney general is playing politics.
“With a hotly contested Republican gubernatorial primary barely a year away Attorney General Schmidt has once again allowed himself to be distracted from his job as the state’s chief law enforcement officer,” Carmichael said.
“It’s not the first time, nor likely will it be the last. He has a long history of unsuccessfully picking fights with the federal government over federal laws with which his far right-wing base disagree,” he said in an email.
“He’s obviously courting their votes at the expense of the taxpayers when he should be doing something about gun violence in the streets of Wichita and every other city in the state,” the Wichita lawmaker said.
Three years ago, Schmidt had joined with 15 other states to ask the court to reexamine the lower court ruling that found that the Michigan funeral home had violated federal law when it fired a transgender employee.
The Supreme Court ultimately combined the Michigan funeral home case with two others when it made its historic ruling.
At that time, Schmidt said the state has always argued for a narrow interpretation of Title VII — and Title IX — in order to limit taxpayers’ exposure in potential lawsuits.
“It is within Congress’ authority to expand these laws, but to date they have not chosen to do so,” Schmidt said at the time.
“These decisions should be made by the people’s elected representatives and not by the courts.”