GOP official tells businesses to ignore EEOC guidelines to stop misgendering trans people at work

Indiana Attorney General Todd Rokita (R) is suggesting to businesses in the state that they don’t have to follow new guidance from the Equal Employment Opportunity Commission (EEOC) about not misgendering trans employees.

Two weeks ago, the EEOC issued guidance around Title VII, the federal law that bans discrimination in the workplace. The Supreme Court ruled in its 2020 Bostock v. Clayton Co. decisions that its ban on discrimination “based on sex” includes anti-LGBTQ+ discrimination because it’s impossible to discriminate against LGBTQ+ people without taking sex into account.

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The guidelines discuss examples of what could be considered anti-trans discrimination in the workplace and include factors that create a hostile environment for trans people, like denying them use of the correct restroom, forcibly outing them, and misgendering them.

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“Our opinion plainly clarifies that neither state nor federal law requires a coworker to use the preferred pronouns and names of fellow employees,” Rokita said in a Facebook event shortly after the guidelines were issued where he announced his own “formal opinion” to interpret the EEOC’s rules.

“Because of this, an employer or small business owner is likely not liable in cases where their staff members choose not to adhere to” the EEOC guidelines, he continued. “Our opinion also makes clear that no federal court has ever found that if a coworker uses a non-preferred pronoun alone, even if intentional, that that’s actionable discrimination under Title VII.

“There are no examples in case law where the (mis)use of an employee’s pronouns alone has been held to have created a hostile work environment pursuant to Title VII.”

The EEOC guidelines cited several court cases where misgendering played a big part in determining whether anti-trans discrimination had occurred. It may be true that the cases did not cite misgendering as the only instance of discrimination since anti-trans harassers generally don’t limit themselves to one tactic.

“However, it is possible in certain situations, albeit rare, that repeated, continuous, intentional use of people’s non-preferred pronouns meant only to harass someone could create a hostile work environment,” he noted.

Rokita opened his remarks by calling the EEOC guidelines “a new push by America haters to force the rest of us to embrace the radical gender ideology that they want to impose on Indiana and the rest of the country.” He described trans women in sports as “an invasion” despite the very small number of trans women who participate in women’s sports. He also described supporting trans equality as “trans-sanity.”

“Most Hoosiers agree that we all should extend love and compassion toward individuals dealing with gender dysphoria,” he said. “Treating these individuals with respect, however, does not require us by law to deny basic truths like the fact that there are only two sexes and an individual is one of them.”

“Attorney General Todd Rokita once again made use of the platform provided to him by Indiana’s taxpayers to make divisive pronouncements on culture-war issues,” out state Sen. J.D. Ford (D) said in a statement responding to Rokita’s video.

“The only ‘radical gender ideology’ we need to be worried about is that which fuels our state’s drive to single out transgender Hoosiers for ceaseless attacks designed to manufacture outrage and divide our communities,” he continued.

“Trans people are just that – people and workers deserving of the same respect as anyone else. We call on the Attorney General and associated elected officials to move on from their hyperfixation on imagined problems, leave vulnerable minority communities alone, and get back to work solving the real issues facing this state.”

In his Facebook video, Rokita also attacked recent guidelines issued by the Biden administration banning anti-LGBTQ+ discrimination in schools based on Title IX, which bans discrimination “on the basis of sex.” Rokita said that the guidelines would “destroy” women and girls.

Rokita is one of now 20 state attorneys general suing the Department of Education over the guidelines for the right to discriminate against LGBTQ+ students.

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