In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that the Civil Rights Act of 1964, a law passed to guarantee the constitutional rights of black Americans, barred employers from discriminating on the basis of “gender identity.” A business that requires men to present as men at work, for example, will face discrimination claims if it bars a man from pretending to be a woman at work and using women’s private facilities.
This decision was handed down by a high court with six Republican-appointed justices. Chief Justice John Roberts, appointed by George W. Bush, and Justice Neil Gorsuch, appointed by Donald Trump, voted with Democrat-appointed justices in a case that leftist politicians will cite for years to come as they continue to push the homosexual agenda. In fact, Justice Gorsuch wrote the majority opinion.
Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh dissented. “The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive,” Justice Alito wrote. Sexual orientation and gender identity don’t appear on the Civil Right’s Acts list of classifications, and bills introduced in Congress to redefine “sex” have failed to pass. “A more brazen abuse of our authority to interpret statutes is hard to recall.”
President Joe Biden has cited this decision in his executive “transgender mandate” actions. For example, he issued “guidance” to schools to allow students to use opposite-sex restrooms and locker rooms if they “identify” as such. The mandate will lead to allowing men to share dorm rooms with women, for example. Who will stop it? Republicans in Congress don’t seem to have the will.
But Texas is leading the charge at the state level. Texas Attorney General Ken Paxton recently filed a lawsuit against the Equal Employment Opportunity Commission (EEOC) over its “transgender” June 15 Guidance. Texas contends that the guidance misstates federal law. The state also claims that EEOC chairman Charlotte Burrows didn’t have the authority to issue the guidance.
“The June 15 Guidance makes several substantive changes including requirements that employers treat biological men as women—and biological women as men—when applying sex-specific policies or using sex-specific pronouns,” the complaint reads. The EEOC claimed that the guidance was based on Bostock and previous EEOC decisions as sources of authority. But the state says neither supports the June 15 Guidance.
Bostock is far narrower than the June 15 Guidance. Bostock explicitly disclaimed that it was deciding whether “sex-segregated bathrooms, locker rooms, and dress codes” would violate Title VII. Id. at 1753. Nor did the Court ever address the issue of pronouns…Bostock did not add new categories to those protected by Title VII; it applied existing rules covering discrimination on the basis of “sex”: “While Bostock held that Title VII protection based on sex classification includes an individual’s sexual orientation [or gender identity], it did not establish a new or otherwise separate protected class, but instead clarified the scope of sex classification.”
Texas also contends that the guidance wasn’t approved by a vote of the full Commission or published in the Federal Register.
“States should be able to choose protection of privacy for their employers over subjective views of gender, and this illegal guidance puts many women and children at risk,” Paxton said in a statement. “If the Biden Administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change. These backdoor attempts to force businesses, including the State of Texas, to align with their beliefs is unacceptable.”
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