©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 33 to employees and employers about their rights and obligations following the Bostock decision.32 In their September 27, 2022 letter to Commissioner Burrows, Richard Burr and Virginia Foxx criticized this guidance as going “far beyond what the U.S. Supreme Court actually decided.”33 They point out that the question at issue in Bostock was “whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex,’” yet “such a clear directive did not deter EEOC under [Burrows’s] leadership from issuing expansive guidance on the issue without public input or a Commission vote.” 34 In Texas v. EEOC,35 the State of Texas directly challenged this guidance in the wake of the Bostock decision, which interpreted sections of the Affordable Care Act and the Americans with Disabilities Act to prohibit employers or federally funded agencies from discriminating against transgender individuals with respect to gender-affirming care. Texas argued that the guidances diverged from Title VII, Bostock, and the legal provisions they purported to interpret, and because they violated the First Amendment and the Administrative Procedures Act.36 The court held that all of these difficult statutory questions could be distiled down to one question: “is the non-discrimination holding in Bostock cabined to ‘homosexuality and transgender status’ or does it extend to correlated conduct —specifically, the sex-specific: (1) dress; (2) bathroom; (3) pronoun; and (4) healthcare practices underlying the Guidances and the Amended Complaint?” 37 The court held in Texas’s favor, reasoning that Title VII prohibits employment discrimination because of sexual orientation or gender-identity, but not necessarily all correlated conduct relating to those issues. The court pointed to various instances in the Bostock decision where the majority opinion cabined its definitions and descriptions to the status of being homosexual or transgender, noting that it “repeatedly joined the terms ‘status’ and ‘for being’ in the sentences, paragraphs, and sections discussing these concepts.” 38 Moreover, the court found compelling the majority’s response to the “parade of horribles” that had been prophesied in Justice Alito’s dissent in Bostock, noting that Justice Alito “predicted the holding in Bostock would reach at least seven categories of Title VII litigation: (1) ‘bathrooms, locker rooms, or anything else of the kind’; (2) ‘women’s sports’; (3) ‘housing’; (4) ‘employment by religious organizations’; (5) ‘healthcare’; (6) ‘freedom of speech’; and (7) ‘constitutional claims.’” 39 The Bostock majority’s opinion specifically addressed those concerns by denying that its decision was in any way prejudging those issues: “Case by case, category by category, controversy by controversy, Justice Gorsuch deferred judgment, stating Bostock decided only what Bostock decided: under Title VII, ‘an employer who fires an individual merely for being gay or transgender defies the law.’” 40 Finally, the court found that the categories of issues identified in the Bostock dissent matched closely the policies that were at issue in Texas’s lawsuit, including sex-specific dress, bathrooms, pronouns, and healthcare practices. Because those issues were expressly reserved by Bostock, they remain undecided. The court then addressed what it believed to be the core of the parties’ dispute: what does it mean to “be” homosexual or transgender, or, more particularly, what does that phrase mean in the context of the Bostock decision? According to Texas, that meaning should be restricted to attraction and identification, but should not extend to all associated actions, i.e., correlated conduct such as sex-specific dress, bathroom usage, pronouns, and healthcare policies. The EEOC argued that such a narrow interpretation should be rejected 32 See Sept. 27, 2022 letter from R. Burr and V. Foxx to C. Burrows, at 2, republicans-edlabor.house.gov/uploadedfiles/9.27.22_eeoc_case_ management_and_bostock_letter.pdf. 33 Id. 34 Id. 35 Texas v. EEOC, No. 2:21-cv-194-Z, 2022 WL 4835346 (N.D. Tex. Oct. 1, 2022). 36 Id. at *2. 37 Id. (emphasis in original). 38 Id. at *3. 39 Id. at *4 (quoting Bostock, 140 S.Ct. at 1755-56, 1778-83). 40 Id. (citing and quoting Bostock, 140 S. Ct. at 1754).
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