Texas Attorney General Ken Paxton returned to court on Thursday to press his case against the Biden administration’s workforce protections for transgender employees.
Texas’s lawsuit, filed in federal court on Thursday against the Equal Employment Opportunity Commission and the U.S. Justice Department, argued that the agency’s guidelines were unlawful and asked that the court permanently block them.
The EEOC’s guidance, released in April, seeks to clarify what constitutes harassment under federal law. It states that denying employees accommodations for their gender identity — such as by prohibiting an employee from using the bathroom of their gender identity or repeatedly and intentionally using a name and pronoun that is inconsistent with a person’s gender identity — is unlawful workplace harassment.
“Harassment, both in-person and online, remains a serious issue in America’s workplaces,” Charlotte Burrows, the agency’s chair, said at the time. “The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.”
The Texas suit said that the guidance “purports to preempt the State’s sovereign power to enact and abide by its workplace policies” and raises the “forced choice of either changing their policies at taxpayer expenses or ignoring the Guidance and accepting impending enforcement actions and increased costs of litigation and liability.”
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The lawsuit, which Texas filed along with the Heritage Foundation, a conservative think tank, is a continuation of Paxton’s legal challenges to the Biden administration’s gender-affirming policies. It is one of dozens of suits Texas has brought against the federal government since Biden stepped into the White House in January 2021, legal steps that seek to advance some of the highest-priority conservative issues of the day.
In July, U.S. District Judge Matthew Kacsmaryk rejected an earlier request by Texas that it block the EEOC’s May guidance without ruling on the merits of the request, saying the state’s challenge required a new complaint because it was filed against a new document. The lawsuit on Thursday was that new complaint, and Paxton’s latest effort to stymie the Biden administration’s agenda.
That was from last month, as is the next story. You know how it is, sometimes I draft a thing and then don’t get around to publishing it soon after because too much other stuff comes up. Anyway, as far as this goes, we have seen this movie before, and we know how it ends. The only questions are how long it takes, and whether SCOTUS will be bothered to do anything about it.
A Texas federal judge this month ruled that the Biden administration had acted unlawfully in interpreting Title IX to prohibit discrimination against LGBTQ students. The ruling preempts future action by the Education Department to prohibit discrimination in educational settings on the basis of sexual orientation or gender identity.
Judge Reed O’Connor’s Aug. 5 decision broadened an earlier ruling in June that struck down specific Biden administration rules intended to expand protections to LGBTQ students.
O’Connor, a President George W. Bush appointee, said the Biden administration overstepped its authority and that any new guidelines that expanded anti-discrimination protections to LGBTQ students would be illegal in Texas.
“To allow Defendants’ unlawful action to stand would be to functionally rewrite Title IX in a way that shockingly transforms American education and usurps a major question from Congress,” O’Connor wrote in his Aug. 5 opinion.
Not just what you did before, but anything you might do next. Another room service ruling from one of Ken Paxton’s pet judges.
Look, we all know that SCOTUS is a corrupt mess, the root of the problem, and in desperate need of being reined in. There are some proposals about there – Steve Vladeck is tireless on the subject, as is Elie Mystal – and most of them have a lot of merit. It’s just that as badly as SCOTUS needs reform, the problem goes way beyond it.
Right now, here in Texas, we have a handful of unqualified, thoroughly partisan, judges in name only who regularly make up the law as they see fit in service of Ken Paxton or one of his sponsors. There’s basically nothing that President Biden can do – or that President Harris will be able to do – that these guys won’t blithely bat away. On the flip side, when a non-corrupt district court judge makes a ruling that goes against Ken Paxton, the Fifth Circuit steps in and blocks or overrules it. The richest man in the world doesn’t have as many dedicated servants doing his bidding as Ken Paxton does.
If we ever want that to stop, it’s going to take sweeping, ruthless, unprecedented action by Congress and the President to clip some wings, set enforceable limits, ban the practice of hand-picking judges, and maybe just add a bunch more sane and normal people to the benches here for some balance. Most of President Biden’s appointees have been in blue states because of the archaic “blue slip” tradition, which gives red state senators veto power over the President’s choices. We cannot continue to be hamstrung by that, and as it’s just a tradition and not a law or even a Senate rule, it’s the easiest thing to do away with, if we make it a priority and put some effort into it. In the last conversation I had with Amanda Edwards before the Tuesday election, I said we need some Democratic members of Congress from Texas raising this issue, as part of the bigger picture. It’s a small part of the puzzle, but it’s a necessary start.
There are many, many things in Texas that need to be fixed. As discussed ad nauseum, most of those require winning more elections. But some of them could be done with reforming the federal judiciary. SCOTUS is a part of that, and I’m glad that it’s getting attention now. But it’s far from the be all and end all of it. Let’s work on fixing what’s here as well as what’s in DC.