Tuesday, April 30, 2024

Sexual harassment, bathroom, and pronouns

"Sex-based harassment includes harassment based on sexual orientation or gender identity, including … repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity … or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity."

That the official position of the EEOC in its just released, Enforcement Guidance on Harassment in the Workplace.

EEOC Commissioner Andrea Lucas disagrees. She voted against the final guidance. She believes that the bathroom guidance is an "assault on women's sex-based privacy and safety," and the pronoun guidance is an assault on "speech and belief rights."

With all due respect to Ms. Lucas, she's incorrect. The EEOC is not breaking new ground here. These positions are consistent with the totality of federal jurisprudence on these issues under Title VII.

Further, according to the American Medical Association and many other health care organizations, denying transgender people access to bathrooms that correspond to the gender with which they identify causes negative health outcomes, emotional distress, and stigma. There is no such credible similar data supporting the belief that trans women pose a safety threat to biological women when they share a bathroom. To suggest otherwise labels all trans women as sexual deviants and rapists. That's what discrimination looks like.

Regarding preferred pronouns, your beliefs (usually grounded in religion) are not a license to discriminate against others to deny them theirs. Everyone has the right to their own belief structures. Shrouding a discriminatory belief in a cloak of "religious liberty" to justify your actions, however, is dangerous. It's a slippery slope between the religious freedom to refuse to use another's preferred pronoun, to firing an LGBTQ+ employee, to firing Black or Jewish employee, all in the name of "it's against my religious beliefs." It's morally wrong and legally indefensible.

Use the bathroom of your choice and believe what you want to believe. Just know that if you deny trans people their rights, you're violating Title VII, no matter what one EEOC Commissioner tells you.