DALLAS — A federal judge in Texas has ruled that employment protections for gay and transgender workers do not extend to policies regarding dress codes, preferred pronouns or bathroom usage.
Texas joins 20 other states where the protections, laid out in federal guidance issued last summer, are on hold following a judge’s order.
In a Saturday decision, U.S. District Court Judge Matthew Kacsmaryk said the Biden administration went too far when it said discrimination protections for gay and transgender workers extended to aspects of employment beyond hiring and firing decisions. Only the “status” of being gay or trans is protected, the judge determined, “but not necessarily all related conduct” such as “sex-specific dress, bathroom, pronoun, and healthcare policies.”
Kacsmaryk’s decision is a win for Texas, which sued in September to block the guidance. The Office of Attorney General Ken Paxton, a Republican seeking reelection this year, is representing the state.
Lawyers for the federal agencies being sued — the U.S. Department of Health and Human Services and the Equal Employment Opportunity Commission — did not return requests for comment about whether they would appeal the decision.
Paxton did not respond to requests for comment, but issued a press release Thursday hailing the decision as a win over “woke gender policy.”
“The Biden Administration’s attempts to radicalize federal law to track its woke political beliefs are beyond dangerous,” he said. “I will continue to push back against these unlawful attempts to use federal agencies to normalize extremist positions that put millions of Texans at risk.”
On Wednesday, the EEOC’s website noted the Texas judge’s decision had “vacated” its guidance on this topic.
In June 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that it is unconstitutional for employers to discriminate against a worker or prospective worker based on sexuality or gender identity.
A year later, the EEOC issued new guidance saying the ruling extended to policies beyond hiring and firing, specifically noting it would be unlawful to ban transgender employees from using pronouns and restrooms that match their gender identities.
But Kacsmaryk agreed with Texas that this interpretation was overly broad. He said the Bostock ruling narrowly dealt with hiring and firing practices, and rejected the government’s argument that sex is “inextricably intertwined” with certain workplace “conduct.”
He likened this case to lawsuits over whether anti-discrimination rules covering race applied to an employee wearing dreadlocks, or national origin protections to workers speaking Spanish as a form of individual self-expression or ethnic identification.
“‘Status’ and ‘conduct’ do not necessarily merge every time an employee plausibly pleads a ‘closely associated trait,’” Kacsmaryk wrote.
In the same ruling, he also said the federal government erred in issuing guidance earlier this year that warned federal-funded entities they could be in violation of the Affordable Care Act if they denied gender-affirming care to transgender patients.
This guidance was issued a few weeks after Texas Gov. Greg Abbott directed the state’s child welfare agency to investigate reports of transgender minors receiving certain medical treatments, such as puberty blockers and hormone therapy. The Biden administration has been vocally critical of the child abuse investigations, urging Texans affected by policies such as these to file civil rights complaints with the federal government.
Kacsmaryk called the federal guidance “arbitrary and capricious.”
A Donald Trump appointee, Kacsmaryk openly opposed the expansion of LGBT rights before his time on the bench. As the former head of the Plano-based Christian legal organization First Liberty Institute, he was critical of same-sex marriage and opposed transgender-inclusive policies in Texas schools as an erosion of parental rights and religious liberties.
Kacsmaryk’s district, based in Amarillo, encompasses 26 counties in the Texas Panhandle.
This isn’t the only Texas lawsuit pending over the boundaries of the Bostock ruling.
In another federal suit brought by the former state solicitor general, two Christian employers argue for-profit businesses should be able to hire and fire employees based on their gender identity or sexual orientation. U.S. District Judge Reed O’Connor ruled largely in their favor late last year.
That case is currently pending before the 5th Circuit Court of Appeals.
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