Texas sues Biden over 'gender identity' accommodation guidance

Texas Attorney General Ken Paxton sued three federal agencies Tuesday to “stop an unlawful attempt to redefine federal law through agency guidance” that mandates “gender identity” accommodation in the workplace.

Paxton sued the Equal Employment Opportunity Commission, the U.S. Department of Health and Human Services, U.S. Attorney General Merrick Garland and other federal officials to block April 29 EEOC guidance that redefines the meaning of “sex” in Title VII of the Civil Rights Act of 1964.

The EEOC’s “Enforcement Guidance on Harassment in the Workplace” states that Title VII requires all covered employers, including states, “to require employees to use others’ preferred pronouns; allow transgender individuals to use the shower, locker room, or restroom that corresponds to their gender identity; and allow employees to adhere to the dress code that applies to the opposite biological sex.”

Texas’ lawsuit was filed Tuesday in U.S. District Court Northern District of Texas Amarillo Division, the same court where Paxton filed a lawsuit nearly three years ago to block similar EEOC guidance, which the court struck down.

In September 2021, Paxton sued the EEOC to block June 2021 guidance from going into effect that required employers to allow exceptions for employees with stated “gender preferences and identities” to use bathrooms, locker rooms, showers, dress codes and personal pronouns contrary to their biological sex. The lawsuit argued the guidance was unlawful and increased the scope of liability for all employers, including the state of Texas, which employed roughly 140,000 people in September 2022, according to the state comptroller’s office.

The lawsuit argued: “States have the sovereign right to enact their own policies regarding things such as bathroom usage, and this is an extreme federal overreach by the federal government.”

The lawsuit was later amended to include the U.S. Department of Health and Human Services as a defendant after the agency promulgated a new rule threatening to cut federal funding to states that prohibit “sex-change” procedures and classify the procedure as child abuse.

The court struck down both rules, vacated the 2021 guidance and issued a binding declaratory judgment between the EEOC and Texas.

The court ruled the EEOC lacked any authority to reinterpret the law and issue any mandates based on that faulty interpretation. It also ruled the guidance was unlawful because Title VII of the Civil Rights Act of 1964 does not require employers to provide accommodations to employees based on their perceived gender identities. The EEOC and the U.S. Attorney General’s Office did not appeal the court’s ruling.

Nearly two years later, the EEOC is trying again to implement a rule the courts previously halted.

In response, Paxton asked the court to enforce its previous declaratory judgment, vacate the April 29 guidance and grant injunctive relief to prevent the administration from continuing to issue guidance that is contrary to law.

“Yet again the Biden Administration is trying to circumvent the democratic process by issuing sweeping mandates from the desks of bureaucrats that would fundamentally reshape American law,” Paxton said. “Texas will not stand by while Biden ignores court orders forbidding such actions and will we hold the federal government accountable at every turn.”

The lawsuit was the 75th filed by the OAG against the Biden administration following others that range from halting Environmental Protection Agency mandates, to halting federal agency restrictions on the oil and natural gas industry, on healthcare and hospital policies, abortion mandates, Medicaid funding, restricting lawful gun rights, religious freedom, and property rights, and a range of COVID-era restrictions, including employer and transportation vaccine mandates, among others.

Texas has also led the charge in suing the administration on a range of border security issues, including over Department of Homeland Security Secretary Alejandro Mayorkas halting border wall construction, and defending Texas’ border wall construction and efforts to block illegal entry. Texas has also filed multiple lawsuits to halt a range of Mayorkas’ policies and parole programs and joined multiple state coalition lawsuits to halt Biden administration policies they argue violate federal law and state’s rights.