In President Joe Biden’s America, if you disagree with transgender orthodoxy, you might not be able to run a business.
Federal law prohibits harassment on the basis of sex in the workplace, and under Biden, the Equal Employment Opportunity Commission aims to weaponize that law against employers who believe that biological sex can’t be altered by mere identification.
The EEOC published its proposed rule for workplace harassment Monday.
The proposed rule cites the Supreme Court’s decision in Bostock v. Clayton County (2020), stating that “sex-based discrimination includes discrimination based on sexual orientation and gender identity.”
“Accordingly, sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed,” EEOC claims:
Examples include epithets regarding sexual orientation or gender identity; physical assault; harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender; intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. (emphasis added)
To underline the point, the Equal Employment Opportunity Commission provides an example of how this works in practice.
“Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her,” the EEOC narrates. “One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and ‘dude’ when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as ‘he.’”
“Coworkers have asked Jennifer questions about her sexual orientation and anatomy and asserted that she was not female,” the EEOC adds. “Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers. Based on these facts, Jennifer has alleged harassment based on her gender identity.”
In July 2022, a federal judge prevented the EEOC from applying a “guidance” document encouraging Americans to file complaints against employers who violate transgender orthodoxy, including by “misgendering.”
The EEOC—and the Department of Education—claimed that it did not need to comply with the Administrative Procedure Act in drafting such a document because it was not binding. The judge ruled otherwise, and this proposed rule seems to be EEOC’s belated response.
Federal courts repeatedly have ruled that employers cannot compel employees to endorse speech with which they disagree—including gender pronouns.
Shawnee State University attempted to force philosophy professor Nicholas Meriwether to use students’ preferred pronouns, even neologisms such as “xe” and “ze.” The U.S. Court of Appeals for the 6th Circuit ruled that Meriwether had alleged sufficiently that the university burdened his rights to free speech and religious expression by requiring him to refer to a male student using female pronouns.
The university settled with the professor, avoiding a ruling that it actually had violated Meriwether’s rights, but the case established a clear precedent on the matter.
Yet the Meriwether case doesn’t necessarily doom the EEOC rule.
In the Bostock case, the Supreme Court ruled that the discrimination “because of sex” prohibited by Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of sexual orientation or gender identity.
The EEOC’s proposed rule adds that an employer’s duty to protect workers from “religiously motivated” harassment overrides the Title IV requirement that employers “accommodate employees’ sincerely held religious beliefs, practices, and observances in the absence of undue hardship.”
“Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment,” the rule says. “As with other forms of harassment, an employer should take corrective action before the conduct becomes sufficiently severe or pervasive to create a hostile work environment.”
In other words, if a female employee asks for a religious exemption to use male pronouns when referring to male employees, regardless of their stated gender identity, her boss should dismiss her request because she’s attempting to engage in harassment.
This rule imposes the Biden administration’s view that stated gender identity overrides biological sex, a highly dubious contention that Americans reject in many arenas.
Biological sex is written into every single adult cell of a person’s body from the moment of conception to the moment of death. The XX or XY chromosomal makeup determines how a baby develops in the womb, how an adolescent goes through puberty, how certain drugs affect a person’s body, how an adult reproduces, and even how anthropologists analyze the skeletons of human beings long dead.
Although a tiny minority experience disorders of sex development, these “intersex” people don’t represent a third sex but rather a biological confusion between the two—which are both necessary for reproduction.
Gender ideology attempts to muddle the clear differences between men and women, and in doing so, it creates a host of harms. Although most people who suffer from a gender dysphoria (the persistent and painful identification with the gender opposite one’s biological sex) may not represent a threat, nefarious opportunists can use a gender identity as a weapon.
Males can claim to identify as women to gain admittance to women’s private spaces, such as locker rooms and restrooms. They can claim a female identity in order to compete in women’s sports, where their male physiology gives them a distinct advantage. In some horrifying situations, men convicted of rape have convinced authorities to move them to women’s prisons.
Gender ideology arguably constitutes a religion at odds with scientific fact. It propagates a narrative of oppression—society inherently hates transgender people. It promotes a pseudo-gospel of personal transformation—from “living the lie” of one’s biological sex to adopting a transgender “true self.”
From social media influencers to schools to the Biden White House, many on the Left praise as “brave” those who “come out” and embrace a transgender identity. Some dismiss those who identify with their biological sex as “cisgender” or even “cissies.”
This ideology presents an entirely different notion of reality—one grounded in an individual’s feelings rather than plain biological fact.
Sensing the wide-ranging impacts of this ideology, Supreme Court Justice Samuel Alito issued a dire warning about the high court’s Bostock decision.
The ruling “may even affect the way employers address their employees and the way teachers and school officials address students,” Alito warned. “Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories.”
“Some jurisdictions, such as New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense, and some colleges have similar rules,” the justice warned. “After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.”
Alito warned that the court majority’s ruling in Bostock could lead to the kind of forced orthodoxy that the Biden administration now has officially supported.
This Equal Employment Opportunity Commission’s proposed rule may drive tens of thousands of small business owners out of business because they refuse to kowtow to the administration’s new speech codes.
On the other hand, if the rule faces opposition in the courts, it may force the Supreme Court to reconsider the Bostock ruling.
In either case, Americans can make their voices heard by commenting on the EEOC’s proposed rule. Federal law requires the agency to read every comment you send before the deadline of Nov. 1. You may comment on the rule at this link.
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