Tennessee targets federal guidelines protecting transgender employees in latest lawsuit

Tennessee's attorney general sued the federal government again Monday over protections for transgender people.

This most recent lawsuit asks a judge to block new guidelines for sex-based harassment in the workplace that extend to cover an employee's gender identity. Tennessee is leading a group of 18 mostly Republican-led states challenging the Equal Employment Opportunity Commission's guidelines in U.S. District Court for the Eastern District of Tennessee.

Under the guidelines, an employer could be held liable under Title VII of the Civil Rights Act — which prohibits employment discrimination — if they don't allow employees access to bathrooms consistent with their gender identity, repeatedly and intentionally refer to an employee with pronouns inconsistent with their gender identity or harass an employee because they dress or appear differently than the way typically "associated with that person’s sex," for example.

Tennessee AG continues strings of gender-based lawsuits

This is the second time in a matter of three weeks that Tennessee Attorney General Jonathan Skrmetti sued over EEOC guidelines and federal transgender protections. He most recently sued the U.S. Department of Education over similar rules protecting students from harassment based on gender identity under updated Title IX rules.

In a news release, Skrmetti argued that the EEOC through these rules is making law, a power given to elected representatives, not "unaccountable commissioners."

"When, as here, a federal agency engages in government over the people instead of government by the people, it undermines the legitimacy of our laws and alienates Americans from our legal system," Skrmetti said in the release.

Tennessee's attempts to roll back transgender residents' ability to use the bathroom they feel comfortable in have had mixed results in the past. In May 2022, a federal judge in Tennessee's Middle District struck down a state law requiring businesses and government buildings to post a sign if they let transgender people use facilities associated with their gender identity.

But in July 2022, a judge in Tennessee's Eastern District granted an injunction blocking guidance from the EEOC and Department of Education prohibiting discrimination based on gender identity, including requiring that students and employees be allowed to access the bathroom consistent with their gender identity.

The controversy over gender identity

Gender identity refers to a person's internal sense of being male, female, both or something else, according to Northwestern Medicine. It might match the sex someone is assigned at birth, determined generally by their body parts, or it might not.

A study in 2018 found no evidence that policies that allow people to use the bathroom consistent with their gender identity increase safety risks. TIME reported in 2016 that while there are incidents of heterosexual men dressing like women to gain access to women's spaces, "there’s no record of that behavior increasing when there’s an LGBT non-discrimination law on the books."

Despite the new protections, one in six business leaders surveyed online in May 2024 said that transgender employees cannot use bathrooms aligned with their gender identity at their companies, according to a survey from ResumeBuilder.com.

Evan Mealins is the justice reporter for The Tennessean. Contact him at emealins@gannett.com or follow him on X, formerly known as Twitter, @EvanMealins.

This article originally appeared on Nashville Tennessean: Tennessee AG sues over federal protections for transgender workers