21 state attorneys general are calling out the Biden administration’s pro-LGBT policies for threatening religious freedom, freedom of speech, and privacy rights. In a letter sent to the administration last week, the attorneys general address the recent guidance issued by the Equal Opportunity Employment Commission and the Department of Education expanding the definition of “sex” to include gender identity and sexual orientation in compliance with a January executive order from President Biden. The letter points out that States and individuals were not given any opportunity to submit feedback through the public comment process as the EEOC and Education Department finalized policies in response to a presidential executive order earlier this year. Instead, the guidance was issued unilaterally by the respective agencies.

Last year in Bostock v. Clayton County the Supreme Court redefined “sex” in Title VII of the Civil Rights Act to include gender identity and sexual orientation. Immediately after taking office, President Biden issued an executive order requiring all federal agencies to adopt the Court’s sweeping redefinition of the word “sex and to implement policies that include sexual orientation and gender identity in their definition of sex-based discrimination.

When the Court decided on Bostock, it specifically stated that the ruling did not apply to “bathrooms, locker rooms, or anything else of that kind.” And yet, the policies emerging as a result of President Biden’s executive order are using the Court’s absurd redefinition of “sex” to require employers to allow biological males in women’s restrooms, schools to allow male athletes on female sports teams, and even to compel speech by requiring the use of “preferred pronouns” that do not match an individual’s biological sex.

The guidance issued by the Department of Education instructs schools to allow students to compete on sports teams and access bathrooms that match their “gender identity” rather than their biological sex and “implies that schools can be punished by the federal government because a student’s peers refer to that student by the student’s given name or with pronouns corresponding with that student’s sex.”

The EEOC’s guidance calls for similar measures, requiring employers to allow biological males to access women’s restrooms, locker rooms, and showers on the basis of their “gender identity” and stating that failure to use an employee’s “preferred pronouns” is a form of harassment.

Additionally, the EEOC guidance “appears to ignore two of three protections provided to religious employers, acknowledging only the Religious Freedom Restoration Act, but nothing else.” The letter explains that Bostock recognized three protections for religious freedom: the Religious Freedom Restoration Act, Title VII’s statutory exception for religious organizations, and the First Amendment’s protections of “the employment relationship between a religious institution and its ministers” and that the EEOC guidance appears to acknowledge only the Religious Freedom Restoration Act.

The attorneys generals’ letter rightly points out that “Bostock did not provide any basis for a claim that using biologically accurate pronouns could violate the law. To the contrary, the First Amendment protects the right to ascribe pronouns to others based on their sex.” The letter goes on to describe the guidance as “an effort to leverage the authority of the federal government to chill protected speech disfavored by [the] administration.” Earlier this year the 6th Circuit Court of Appeals ruled that Shawnee State University had violated a professor’s First Amendment rights when they demanded that he use feminine pronouns to refer to a male student.  

The recent guidance from the EEOC and the Department of Education makes those same demands of employers, teachers, students, and school staff across the country in a clear attack on free speech and conscience rights. The actions being taken as a direct result of President Biden’s January executive order compromise safety and privacy and are a direct violation of First Amendment rights.

(Image: Gage Skidmore, Flickr, CC BY-SA 2.0)