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July 8, 2021

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Attorney General Steve Marshall Opposes Unlawful Changes in Federal Employment and Education Sexual Identity Discrimination Guidance

(MONTGOMERY) – Attorney General Steve Marshall, along with 20 other state attorneys general, voiced opposition to President Joe Biden for unlawful regulatory guidelines recently issued by the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Education forcing radical changes concerning sexual orientation and gender identity policies on nearly every employer and school across the nation.

“The EEOC and U.S. Department of Education have acted with complete disregard for procedural safeguards and democratic accountability in unilaterally ordering radical changes in sexual identity guidelines for businesses and schools throughout the country,” said Attorney General Marshall.

“Instead of involving states, localities and stakeholders, the federal agencies instead chose to disregard the rule of law and excluded public notice and participation in the regulatory process. Americans are not passive recipients of the law, but rather active participants in the process of its creation and revision.”

On June 15, 2021, without approval from other commissioners or the public, the EEOC chairwoman issued technical guidance dictating that employers cannot protect the privacy of their employees and their ability to utilize sex-specific bathrooms or locker rooms. The guidance relies on a flawed interpretation of the case Bostock v. Clayton Cty., Georgia, even though the Supreme Court’s narrow decision in the employment discrimination case explicitly refrains from addressing “sex-segregated bathrooms, locker rooms, and dress codes.”

Similarly reaching well beyond Bostock, the U.S. Department of Education announced on June 16, 2021, that Title IX, a federal law that prohibits sex-based discrimination in any school or education program receiving federal money, also protects students from discrimination based on sexual identification and gender identity. No longer, according to the Department of Education, will schools be allowed to preserve the privacy of middle school and high school
students by ensuring they can use sex-specific showers, locker rooms and restrooms.

“This is a matter of concern for millions of students and parents who appreciate the availability of private facilities for bathing and changing at school,” Attorney General Marshall and his colleagues wrote to President Biden.

The attorneys general also responded to the agencies’ claim that using biologically accurate pronouns could violate the law: “With respect to pronouns, the EEOC’s guidance comes across as an effort to leverage the authority of the federal government to chill protected speech disfavored by your administration.”

Attorney General Marshall was joined by attorneys general from Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and West Virginia in the letter to President Biden.

To read the attorney generals’ letter to President Biden, click here.

[To access link, click PDF icon at upper right of press release]