On June 15, 2021, the Equal Employment Opportunity Commission (EEOC) released guidelines stating failure to respect transgender employees’ identities could constitute harassment. Later on March 2, 2022, the U.S. Department of Health and Human Services (HHS) put out a statement that included the same interpretation of federal law, adding that doctors who report child gender modification as abuse could face punishment from HHS.
Texas Attorney General Ken Paxton sued the Biden administration over the new guidance on behalf of Texas agencies including the Texas Department of Agriculture, claiming the guidance misapplied the law and steamrolled the state’s current standards for public employees. In response, the federal government asked the judge to dismiss the case for several reasons, including the claim that the Supreme Court interpreted sex discrimination to include gender identity as well as biological sex in Bostock v. Clayton County and that these guidance documents were only summaries, not binding rules.
Federal judge Matthew Kacsmaryk largely sided against the Biden administration yesterday, agreeing to dismiss a single part of Paxton’s case but mostly allowing it to proceed.
While Kacsmaryk’s May 26 order is not a final opinion in the case, it makes several judgments about the agency guidance.
For example, although Bostock held that discrimination based on transgender status entails discrimination based on sex, Kacsmaryk observes that it explicitly avoids the bathroom topic.
“Although the dress-code, bathroom, and pronoun accommodations it imposes are not required by Bostock or EEOC’s cited federal-sector employment decisions, the Guidance argues those impositions are ‘existing requirements under the law,’” the order reads.
Additionally, Kacsmaryk said the guidance amounts to a new rule with real consequences for employers that disobey it and public employees that enforce it.
“Defendants ‘can’t have their cake and eat it too’: if the June 15 Guidance states existing requirements of law and ‘established legal positions,’ how could EEOC investigators and staff not consider them binding?” Kacsmaryk asks.
“Just as with the June 15 Guidance, Defendants expect [Texas] to choose between compliance with the March 2 Guidance or violate the Guidance and wait for HHS to ‘drop the hammer’…”
While the ripples of the case reach employers in general, it directly relates to the state’s new practice of treating child gender modification as abuse.
The Texas agency in charge of investigating child abuse recently began interpreting the state’s legal definition of abuse to include drugs and surgeries meant to aid gender transitions for children. The March 2 guidance was released shortly afterwards as a direct response to this new position, accompanying a statement by President Joe Biden condemning “Texas’ Attacks on Transgender Youth.”
Federal law — specifically, Title VII, Title IX, and Obamacare — prohibits discrimination on the basis of sex. Under the Biden administration’s interpretation of this protection, employers that use disfavored pronouns could face punishment for harassment, and medical officials that consider child gender transition abusive could risk losing federal funding for reporting these procedures to the state.
Federal money funds a substantial share of Texas’ healthcare services, making up 67 percent of the Department of State Health Services budget and 62 percent of the Texas Health and Human Services budget.
Kacsmaryk said the federal government’s guidance would force Texas to stop treating puberty blockers and other procedures as abusive or lose healthcare funding.
“The March 2 Guidance operates similarly, creating legal obligations by forcing [Texas] to modify its child abuse laws in accordance with Defendant’s interpretation of [the Affordable Care Act] and Title IX,” yesterday’s order reads.
“[T]he Guidances coerce [Texas] to abandon its workplace policies and enforcement of its child abuse laws with threats of enforcement actions, civil penalties, and withholding of federal funds.”
Notably, the Texas legislature never changed the state’s child abuse laws to include puberty blockers or transition surgeries, although certain bills that died in the Texas House last year would have made this change. Instead, Paxton issued an opinion claiming that current Texas law already includes these procedures in the definition of abuse, and Governor Greg Abbott directed the DFPS to start investigating them as such.
The Texas Supreme Court has since ruled that DFPS may continue investigating them but clarified that Abbott does not wield direct authority over the agency.
Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.