Red states abandon lawsuit challenging EEOC gender identity guidance

Tennessee and 17 other conservative states sought to dismiss their pending lawsuit against the U.S. Equal Employment Opportunity Commission (State of Tennessee, et. al. v. EEOC) on Tuesday, arguing that a Texas district court judge’s decision to vacate portions of the agency’s harassment guidance in May rendered their own challenge moot.

Texas was not among the states that filed alongside Tennessee, but the state raised “near-identical claims” to those the other red states identified, according to a court document jointly filed by the parties.

Like Texas, the group of red states took issue with parts of the April 2024 harassment guidance that included sexual orientation- and gender identity-based harassment in sex discrimination considered unlawful under Title VII of the Civil Rights Act. 

Examples could include “intentionally and repeatedly failing to use employees’ preferred pronouns, denying access to intimate spaces consistent with an individual’s gender identity, and harassing conduct because an individual does not dress in a manner that would stereotypically be associated with that person’s sex,” the joint document said. 

In the Texas case, Judge Matthew Kacsmaryk determined EEOC exceeded its authority by “expanding the scope of ‘sex’” under Title VII and said the law does not “bar workplace employment policies that protect the inherent differences between men and women.”

Under the leadership of Acting Chair Andrea Lucas, EEOC has been vocal about wanting to rescind last year’s guidance and did not appeal the Texas decision. 

The cuts to the guidance apply nationwide, an attorney told HR Dive in May.