Tag: gender identity issues

Categories
News News Blog News Feature

TN AG Fights Feds on Pronouns in Workplace

Photo by Alexander Grey on Unsplash

Tennessee Attorney General Jonathan Skrmetti led a coalition of 17 states in filing a lawsuit against the federal government over new rules that would mandate pronoun respect in the workplace. 

In September, the U.S. Equal Employment Opportunity Commission (EEOC) voted to approve updates to its workplace harassment rules. The new rules reflect changes in such laws, including the U.S. Supreme Court’s decision to protect employees against discrimination because of sexuality or gender identity (Bostock v. Clayton County), the #MeToo movement, and emerging issues such as virtual or online harassment.

The rules were published and given a period for public comment, and became federal law in late April. 

“Harassment, both in-person and online, remains a serious issue in America’s workplaces,” EEOC chair Charlotte A. Burrows said in a statement at the time. “The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.”

The EEOC said between fiscal years 2016 and 2023, more than a third of all discrimination charges received by the agency included an allegation of harassment based on race, sex, disability, or another characteristic covered by the laws enforced by the agency. Also, since fiscal year 2018, harassment has been alleged in over half of federal sector equal employment opportunity complaints. Among the 143 merits lawsuits that the commission filed last year, about 35 percent of them included an allegation of harassment.

However, Tennessee AG Skrmetti said companies should be able to use whatever pronoun they choose to use for their employees. As he has done in several such lawsuits in the past, Skrmetti claims the federal government is overreaching into powers given to states.

“In America, the Constitution gives the power to make laws to the people’s elected representatives, not to unaccountable commissioners, and this EEOC guidance is an attack on our constitutional separation of powers,” Skrmetti said in a statement. “When, as here, a federal agency engages in government over the people instead of government by the people, it undermines the legitimacy of our laws and alienates Americans from our legal system.  

“This end-run around our constitutional institutions misuses federal power to eliminate women’s private spaces and punish the use of biologically-accurate pronouns, all at the expense of Tennessee employers.”

Skrmetti also complained about EEOC’s new rule that would make an employer liable if it limits access to a bathroom or other sex-segregated facility, such as a shower or locker room, based on biological sex and not on gender identity, the AG said. Skrmetti claimed employers also may be liable if a customer or other non-employee fails to use an employee’s preferred pronouns or refuses to share a restroom with someone of the opposite sex.

Tennessee is joined the lawsuit with attorneys general from Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia, and West Virginia. 

More broadly, the EEOC’s new rules protect an array of what the agency calls ”legally protected characteristics,” including race, skin color, religion, disability, age, and more. Workplace harassment includes saying or writing an ethnic, racial, or sex-based slur, forwarding an offensive or derogatory “joke” email, mocking a person’s accent, groping, touching, or otherwise physically assaulting a person, and more. 

If a harassment claim is filed, business owners should investigate the matter and take corrective action, EEOC said. That action can include firing the employee, but it isn’t required. The employer can also mandate informal counseling, give a written warning, mandate harassment training, suspend the employee without pay, reassign them, or demote them to a non-supervisory position.

Categories
News News Blog News Feature

Officials Without Borders: TN Gets Involved at the Texas Border, Florida Gender Identity Case

Tennessee Governor Bill Lee visits Tennessee National Guard troops in Texas in 2021. Credit: State of Tennessee

Tennessee state Republican leaders are inserting themselves (and even the Tennessee National Guard) into other states, and one is getting blasted for his troubles. 

Last week, Tennessee Governor Bill Lee announced he was sending 100 Guard troops to Texas “to secure the U.S. Southern border amid an ongoing national security crisis and surging drug crisis being fueled by an open border.” This week, Tennessee Attorney General Jonathan Skrmetti joined the state’s name to a fracas in Florida over a gender identity case in a school. 

Two weeks ago, Texas Governor Greg Abbot invited other states to support “Operation Lone Star” to secure the U.S./Mexico border after expiration of Title 42, a Trump-era covid policy that allowed the U.S. to quickly turn away migrants.    

“America continues to face an unprecedented border crisis that threatens our nation’s security and the safety of Tennesseans,” Lee said in a statement last week. “The federal government owes Americans a plan to secure our country, and in the meantime, states continue to answer this important call to service.”

The Guard troops were to deploy at the end of May. They were slated to be patrolling the border and adding additional security there. They were to also help clear roads and routes, place barriers, and remove debris. Also, the Tennessee troops were to be helping to staff outposts on the border. 

Lee sent 300 Tennessee National Guard troops to the border in July 2021, at the time calling it “the most severe border crisis we’ve seen in 20 years.” Those troops were also requested by Abbott. Lee promised more troops for border security in December 2021 to be sent in 2022, but it’s unclear if they were deployed. The July 2021 move by Lee earned him blowback from some who called it a political stunt.    

Many expressed similar feelings (on Twitter anyway) about Lee’s most recent move to send Tennessee troops into another state in the name of national security. 

But the move had its share of supporters (on Twitter), too.

Meanwhile, state AG Skrmetti joined a coalition of 21 other states’ AGs on a legal brief, inserting themselves and the power they wield in a family-and-school matter near Tallahassee from 2020.    

A news release from the AG’s office said back in 2020 two parents told their child’s school that the child was experiencing “gender confusion.” The parents didn’t want anyone at school to change the child’s name or use “they/them pronouns.” But Skrmetti said school officials met “secretly” with the child about it all and they never told the parents.

Jonathan Skrmetti (Credit: tncourts.gov)

The AGs want a court to reverse a lower court’s ruling in the matter and “reaffirm parents’ longstanding, and fundamental, right to be informed of critical information about their child’s mental health, and well-being.” 

They argue that students must get parental consent to ”vote, enlist in the military without parental consent, and drink alcohol.” Further, they said school’s can’t treat a student’s depression or other mental health issues without involving parents, and that have “no duty or right to keep parents in the dark about gender-related distress either.”

Categories
Opinion Viewpoint

Obergefell’s Limits

For Tennesseans, it may be especially satisfying (or galling, depending on your viewpoint) to consider that last Friday’s Supreme Court decision on same-sex marriage originated in part from the Volunteer State. Swift legal currents caused a dramatic social sea change, but they also leave some key questions in their wake.

It is unquestionably a landmark case, the Brown v. Board of Education of the gay rights movement (but without the years of “massive resistance”). But it should be clear what Obergefell v. Hodges does not say. It guarantees same-sex marriage rights in all 50 states, but it does not outlaw any other type of LGBT discrimination, by governments or private parties.  

Will Obergefell’s “coverage” be extended to such other types of discrimination? 

One obvious starting point would be state laws treating gays unequally in family areas such as adoption, foster parenting, and the like. A number of states still have such laws. Much of the language in Friday’s opinion emphasizes the liberty of homosexuals to pursue family relationships, with a separate discussion of the overriding interests of children in need of (married) parents. It would not be surprising to see anti-gay adoption/foster-parent laws struck down by federal courts trying to discern the Supreme Court’s leanings. 

From there, it is more of a stretch, though not much more of a stretch, to see courts disapproving of any other kind of sexual orientation discrimination by government entities. This is because the opinion grounded its conclusions not only on the “fundamental liberty interests” of marriage under the Constitution’s Due Process Clause, but also the nondiscrimination strictures of its Equal Protection Clause. The latter potentially allows for a broader reading of Obergefell, not limited to the fundamental rights involved in forming families. 

A complete unknown is how (if at all) this decision would affect state laws allowing gender identity discrimination. The “T” in LGBT was not discussed in this opinion. Certainly, some transgender advocates can point to language in the opinion regarding the need for the state to avoid insults to the “dignity” of individuals. But good lawyers, and wary Supreme Court justices, could always formulate distinctions between sexual orientation and gender identity.

And one place courts definitely won’t take Obergefell is anywhere near private discrimination. Constitutional decisions deal with violations of individual rights by government only. In most states (including Tennessee), it is legal for private businesses to discriminate in employment, housing, lending, etc. The only way to prevent that would be legislation, either at the state or federal level. LGBT groups (including those in Memphis) have renewed calls for such legislation, but it’s anyone’s guess how successful such calls will be.

Yet another outer boundary to be tested is the effect of Friday’s ruling on the rights of religious groups who sincerely oppose gay rights measures on theological grounds. Conservative groups caution that such groups need protection too, and they are right. Nothing in Obergefell requires clergy or churches to recognize or perform gay marriages. As the opinion itself correctly recognizes, any attempt to do so would violate their First Amendment freedom-of-religion rights.

What about conservative churches’ tax exemptions? Could they be taken away for opposing same-sex marriages or for otherwise discriminating against homosexuals, as some conservative critics of Friday’s decision claim?  This is also unlikely. The First Amendment protects any government interference in a church’s doctrines, sacraments, or ministerial hiring. 

While federal laws and Supreme Court decisions do allow the IRS to cancel the tax-exempt status of a church or church-affiliated organization which engages in some other type of racial discrimination, that power has not been extended to gender discrimination. An Orthodox Jewish synagogue which requires women to sit separately and cover their heads is in no danger from the IRS. If this is the case, despite laws on the books expressly banning sex discrimination for more than 50 years, it seems implausible to fear that LGBT discrimination will jeopardize tax exemptions (especially since there are yet not actual federal statutes explicitly outlawing such discrimination).

LGBT proponents may look with hope for the extension of the decision’s nondiscrimination precepts to areas outside same-sex marriage. Same-sex marriage opponents can take solace in the fact that no court can force a church, its clergy, or its adherents to recognize a same-sex union. And people who write about constitutional law can take satisfaction in knowing that there will be plenty more on this topic to write about in the years to come.


Steven Mulroy, a former two-term Shelby County Commissioner, is a professor of constitutional law and Associate Dean of the University of Memphis School of Law.