Thanks To Neil Gorsuch, The Biden Administration Is Forcing Employers Everywhere To End Free Speech And Put Men In Women’s Bathrooms

The Federalist ^ | 07/14/2021 | Laura Baxter

[SeekAndFind]

As a labor and employment attorney, I have handled cases before the U.S. Equal Employment Opportunity Commission (EEOC) for almost two decades. This is probably how I got invited to the EEOC-sponsored event, “AANHPI + Pride: Intersecting Identities at Work and Beyond.”

For the uninitiated, AANHPI stands for “Asian American Native Hawaiian and Pacific Islanders.” And yes, the presenters repeated the alphabet string “AAHNPI LGBTQIA+ community” many, many times.

White House appointee Erika Moritsugu kicked off the presentation by boasting that 14 percent of Biden’s appointees are LGBT. She also touted President Biden’s executive orders on “equity,” which blatantly pander to identity groups based on race and sexual self-identification, using purposefully vague language to enable maximum federal power and involvement.

EEOC Vice Chair Jocelyn Samuels spoke as well, and committed the EEOC to expanding its outreach, education, investigation, and litigation efforts, particularly toward a “robust implementation of the Bostock decision.”

Using Bostock to Tyrannize Language and Privacy

Last year, in the case Bostock v. Clayton County, the Supreme Court expanded Title VII of the Civil Rights Act to prohibit distinctions based on sexual orientation and gender identity. New EEOC guidance uses Bostock to force companies to open bathrooms, locker rooms, and showers to employees based on the sex they profess to be. The EEOC also interprets Bostock to mean calling transgender employees by their sex-accurate name and pronouns can constitute unlawful harassment.

In plain language, employers can no longer exclude men from women’s private areas. Employers must also police the use of pronouns by employees, disciplining dissenters in some cases. Further, the EEOC urges employees to file complaints so the full power of federal enforcement and private litigation will come down on any employer who doesn’t comply. (Thanks for enabling this bureaucratic harassment in Bostock, Justice Neil Gorsuch!)

Meanwhile, the presentation continued its descent into madness, condemning state laws that exclude men from women’s sports (calling them “bullying disguised as legislation”). One panelist, an EEOC attorney, claimed such bills must be motivated by misogyny, because they focus on trans women (biological men) instead of trans men (biological women). Despite an Ivy League education, this panelist somehow missed the fact that women (whatever sex they say they are) pose zero threat to men’s sports.

Unable to let such blatant science denial pass, I asked a question in the chat box. “What do you suggest as a solution to the women’s sports / trans athlete conundrum?” I asked, trying to use the lingo. “Specifically the physical advantages of trans women over cis women. How would you resolve?”

In response, the panelist told me: “This is simply a non-issue. The [International Olympic Committee] and the NCAA already have sensible policies in place that require trans women to have testosterone levels comparable to those of cis women. The reality for trans women who are on hormone therapy is that there is no competitive advantage.”

The fact that hormone therapy does not change men’s height, muscle mass, lung capacity, or red blood cell count did not stop this highly-educated government attorney from peddling lies.

The EEOC’s Mission … Abolishing ICE and Prisons?

But wait, there’s more! According to the illustrious panelists, the EEOC’s mission to enforce equal opportunity should encompass many leftist priorities. These included abolishing Immigration and Customs Enforcement; ending incarceration (while somehow also stopping anti-Asian violence); ending prejudice against prostitution; imposing pay equity; and expanding the welfare state to “give people access to what they need to survive and thrive.”

A link to the “Trans Agenda for Liberation” was promoted. Meanwhile, no one bothered to address my second question, about the accommodation of religious beliefs. Finally, the moderator called time (which was good, because my head was exploding).

Put aside, for now, the fact that American taxpayers are involuntarily funding hundreds of unelected, unaccountable federal agencies like the EEOC. With the full support of the Biden administration, the EEOC has declared war on people who hold traditional views on sex, women who value their safety and privacy, and people who simply believe in science (not to mention Asian Americans who don’t view themselves as victims). They will not stop until we have been educated, investigated, and litigated into submission.

Ironically, these radical EEOC policies will not help employees with gender dysphoria win friends and influence people. Instead, ham-handed mandates are creating alienation and outrage among employees who previously just wanted to do their work and live in peace.

This regime forces employers to waste enormous amounts of time and money on compliance (i.e., lawyers), Orwellian training, complaint hotlines, and redesigning perfectly serviceable bathroom facilities. And employees waste time and brain cells on continuous self-censorship, while struggling with how to stand up for their convictions without getting fired. Actual work, of course, goes on the back burner.

How to Fight Back

So what can freedom-loving Americans do? First, it’s important to realize EEOC guidance does not have the force of law. Anyone who has money and legal firepower to challenge some of the EEOC’s radical applications of Bostock should do so. The Bostock decision held that employers cannot fire employees for their sexual orientation or gender identity; it did not rule on bathrooms, pronouns, or religious accommodation. Litigants with resources should seek to limit the Bostock opinion wherever possible.

Second, Americans should use their voices and votes to oppose the Biden administration’s agenda. Contact your senators and other representatives, tell them how the EEOC (and other agencies) are running amok, and let them know your vote is on the line.

Gather like-minded individuals in your community. Make sure your elected officials in Washington and at home know you will not bow to the extremist LGBT agenda, and you will not support those who do.

Finally, be courageous. Don’t be obnoxious, but if you are able to speak your convictions you should do so. Others may be encouraged by your example. If you have religious beliefs on sex and sexuality, learn how to share them in a clear and engaging way. Explore ways to free yourself from the EEOC-dominated W-2 workplace, perhaps through gig and contract work.

The EEOC may be large and powerful, but they can’t arraign everyone. Perhaps if enough Americans say “enough,” we can end the nonsense.

---

Laura practices employment law and teaches political science at her local university. The opinions stated in this article are her own. You can read more of her work at stirfrylaura.wordpress.com.

[tatown]

Well at least we’ve got a conservative court. /s

[Rurudyne]

Pity they will not honor the Constitution and dispose of the entire EEOC as there is no enumerated power given Congress to respect federal civil rights that either private persons or privately held entities must respect them.

The only such delegated power affects only state actors.

[Alberta's Child]

Litigants with resources should seek to limit the Bostock opinion wherever possible.

This is the kind of advice I'd expect from a lifelong loser with a law degree.

I have the exact opposite approach: I have decided to embrace Bostock, Obergefell, and every other zany U.S. Supreme Court decision aimed at empowering the misfits and losers among us.

1. I identify as a woman whenever it works to my advantage.

2. I identify as a BLACK woman when it REALLY works to my advantage.

3. I didn't carry through on my plan because it wasn't necessary after all, but I figured out a way to get a close friend of mine who had lost his employer-based insurance coverage onto MY insurance plan ... by calling him my "spouse" even though we lived 50 miles apart and saw each other no more than once or twice a month.

I say embrace the stupidity, folks. If I'm steering the Titanic, I'm running it straight at the iceberg as long as I know I've got my own lifeboat.

[SaxxonWoods]

Men going into women’s bathrooms seems to be popular.

Why do so few women care about going in men’s bathrooms?

I guess we could make all bathrooms just bathrooms, like in our houses and some parks.

I read that Barbra Streisand has taken an RV shopping for years so she doesn’t have to deal with anyone in bathrooms.

[Bruce Campbells Chin]

Gorsuch is a textualist, which is not quite the same thing as an originalist. His decision was sound from that perspective. The problem is that the law needs to be changed.

[cymbeline]

“In plain language, employers can no longer exclude men from women’s private areas.”

Ambiguous sentence.

[SeekAndFind]

RE: Ambiguous sentence.

How should it be worded to make it clear?

[mewzilla]

And Deep State’s very real war on women continues.

Feminism is soooo dead.

[LIConFem]

Makes one wonder why the Marxist Dems faught so hard against Trump’s three nominees. Each has turned out to be no better than Roberts.

[ProtectOurFreedom]

This is all so depressing.

On the lighter side, how long before the oddballs use up all the letters of the alphabet?

"...the presenters repeated the alphabet string “AAHNPI LGBTQIA+ community” many, many times."

Shouldn't there be a rule that they can't use the same letter more than once?

Who will defend the ZYICMHANSEPDVWBJLFGRKTXOUQ community's rights?

Or the WNVZELIHTYKPFXCRSUQGBDOAMJ community?

[Flick Lives]

“...the presenters repeated the alphabet string “AAHNPI LGBTQIA+ community” many, many times.”

—

I dare them to repeat that absurd acronym without looking at a cue card.

[Phlap]

Thank God for Mitch because were the dumocrats in power at the end of Barry's term, the AG would be a SCJ.

[cymbeline]

“How should it be worded to make it clear?”

It gets down to how to interpret “private areas”.

[SeekAndFind]

RE: It gets down to how to interpret “private areas”.

If women’s bathrooms are not private areas, then nothing is. That’s just common sense.

[G Larry]

Somebody warned these spineless new Justices that mobs would be on their doorstep if their rulings were unpopular.

[Amendment10]

Thank you for referencing that article SeekAndFind. Please bear in mind that the following critique is directed at the article and not at you.

"As a labor and employment attorney, I have handled cases before the U.S. Equal Employment Opportunity Commission (EEOC) [??? emphasis added] for almost two decades."

---

FR: Never Accept the Premise of Your Opponent’s Argument

Whatever post-FDR era law schools are teaching their students, it evidently isn't the federal government's constitutionally limited powers as the delegates to the Constitutional Convention had intended for those powers to be understood.

Simply put, regardless what FDR's state sovereignty-ignoring activist justices wanted everybody to think about the scope of Congress's Commerce Clause powers (1.8.3), it remains that FDR's justices wrongly ignored the following about that clause.

A previous generation of state sovereignty-respecting justices had emphasized the already reasonably clear meaning of the Commerce Clause, that the states have never expressly constitutional given the feds the specific power to regulate INTRAstate commerce.

• "Article I, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

• "State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. [emphases added]" —Gibbons v. Ogden, 1824.

• "From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added]." —United States v. Butler, 1936.

Note that Justice Joseph Story had given a simple, but nonetheless excellent explanation how the Commerce Clause would ultimately be interpreted in a way that blatantly ignores limits on Congress's powers.

"The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments [emphases added]." —Joseph Story, Commentaries on the Constitution 2:§§ 1073--91

Contrast the unconstitutional edicts of constitutionally undefined federal agencies for businesses, edicts forcing businesses to allow men to use women's bathrooms for example, with the fact that Justice Story had indicated that Congress doesn't even have the constitutional authority to establish national minimum wage. This is evidenced by Story's mention that Congress's very limited Commerce Clause power don't even include the power to regulate "the wages of labor."

Regarding career lawmakers pushing politically correct LGBT agenda issues from behind the constitutionally undefined EEOC, patriots are reminded that the only power to protect citizens on the basis of sex that the states have expressly constitutionally given to the feds is limited to voting rights issues, evidenced by the 19th Amendment.

• "19th Amendment:

  The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
  
  Congress shall have power to enforce this article by appropriate legislation."

• "From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added]." —United States v. Butler, 1936.

The bottom line is that Congress has for a long time not only been wrongly been front-ending itself with constitutionally undefined, so-called federal regulatory agencies run by non-elected bureaucrats such as those running the EEOC, EPA, IRS, FDA, CDC, etc., bureaucrats effectively nullifying our enumerated power to elect federal lawmakers, but the powers that these federal agencies are using to dictate regulatory edicts to ordinary citizens are stolen state powers.

Sadly, misguided, low-information voters ultimately have themselves to blame for being oppressed under the boots unconstitutionally big federal government. The problem is voter abuse of 17th Amendment power to elect federal senators, voters electing senators who evidently don't understand the fed's constitutionally limited powers any better than the voters do.

Abuse of voting power by ordinary citizens is not only effectively nullifying 10th Amendment-protected state powers imo, but also giving corrupt Congress a way to bypass the Constitution's Article V amendment process, Congress expanding its powers by simply passing unconstitutional bills.

Think of the 17th Amendment as the self-inflicted social Darwinism amendment.

[BillyBoy]

>> Well at least we’ve got a conservative court. /s <<

Yup, good thing we put nothing but "originalists" in federal judgeships. Those "originalists" are almost as awesome as all the politicians claiming to be "fiscal conservatives".

[cymbeline]

“If women’s bathrooms are not private areas, then nothing is.”

Someone else help this guy out.

[ProtectOurFreedom]

I'm really offended that us WOGAs aren't included!

(Whites Of German Ancestry).

But that would only include Dad's side. I'm Canadian on Mom's side and I'm SUPER offended that us CEHs aren't included, either!

(that would be "Canuck Eh?").