Federal Government Forcing Pronoun Use on Places of Employment

The Biden Administration continues its attack on common sense and basic constitutionally protected free speech rights of employees by imposing woke “transgender” ideology on businesses and the American worker. On September 29, 2023, the Equal Employment Opportunity Commission (EEOC) proposed guidance on enforcement on harassment in the workplace that would make it discriminatory for most employers or employees to “misgender” a coworker, whether the person is present or not.

The Proposed Guidance includes as examples of harassment the following: “harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender; intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”

Submit a public comment now expressing your opposition to this guidance to the EEOC! The public comment period on the proposed guidance ends November 1, 2023.

This is a direct consequence of the Supreme Court’s disastrous ruling in Bostock v. Clayton County, Georgia which held that Title VII’s prohibition on “sex” discrimination covers “sexual orientation” and “gender identity.”

This proposal is a page right out of George Orwell’s novel 1984, in which he described a totalitarian state which created the language “Newspeak” to control the thoughts of its citizens.

Virginia is already familiar with these sorts of policies that seek to compel people to verbally speak messages they disagree with and that are objectively untrue.

In 2019, the West Point School Board fired Peter Vlaming after he stated he couldn’t in good conscience comply with the superintendent’s demand that he refer to one of his students using pronouns inconsistent with the student’s sex. Vlaming tried to accommodate the student by consistently using the student’s new preferred name, but school officials ordered him to stop avoiding the use of pronouns and to start using pronouns inconsistent with the student’s sex. (See our past blogs:  The Firing of Peter Vlaming; Peter Vlaming Fights for Conscience for Himself and All Teachers)  Vlaming sued the school division and oral arguments were heard by the Virginia Supreme Court last year.  The decision is pending.

In 2020, legislation (SB 868, D- Ebbin) was enacted by the Democrat majority that added “sexual orientation” and “gender identity” to Virginia’s own Human Rights Act concerning nondiscrimination laws in the areas of employment, housing, and public accommodations, without any meaningful religious protections. The legislation would, among other things, compel virtually all employers and employees to affirmatively use a person’s preferred pronouns even if different from their biological sex.

That same year, the same Democrat majority passed legislation (SB 161) that required the Department of Education to develop model policies concerning the treatment of transgender students in public elementary and secondary schools, which led to the horrible model policies under former Governor Ralph Northam that embraced a radical gender ideology which jeopardizes the privacy and safety of students, violated free speech, encouraged deceiving parents, and ultimately sought to create a wedge between parents and their children. These horrible policies were recently rescinded and revised under Governor Youngkin.

Then there was Tanner Cross, a physical education teacher in Loudoun County, who informed the school board at a public meeting that he could not comply with the proposed transgender policies that would force educators like himself to affirm the idea to kids that a biological boy can become a girl and vice versa.  Cross was placed on administrative leave, but thanks to the help of Alliance Defending Freedom he successfully challenged the school board’s retaliation, won his job back, and received a legal win for all teachers.

It was the examples of Vlaming and Cross that inspired The Family Foundation to bring a bill the past two years aimed at protecting the free speech rights of school employees and teachers, and to protect their ability to speak out at public meetings in their personal capacity, without fear of retaliation by local school boards.  We hope to see this legislative proposal, which provides meaningful free speech protections for teachers, passed this year.

What are some of the possible outcomes if the new EEOC harassment guidance is adopted?
An employee could file a complaint with the EEOC if the employer or a coworker refuses to use their preferred pronouns (i.e., so-called “misgendering”), triggering an investigation by the federal government.

Any employee could report to his employer and file a complaint with the EEOC if his coworkers fail to use his “preferred pronouns” outside his presence.

A female employee who objects to a male coworker using an intimate place like a bathroom or changing room that is female only would be subject to a sexual harassment complaint.

How should businesses and employees respond if the guidance is adopted?
While the threat of the heavy hand of the federal government is a scary thought for every employer and employee—and no doubt there will be many who go along with the guidance to avoid complaints, investigations, and lawsuits—we are at a point that we must speak up and reject these bad policies. 

First, the EEOC is issuing guidance, which doesn’t necessarily have the same force of law. While this guidance could be used to initiate a complaint or investigation, they are just guidance for government agencies and employers but not an actual requirement.

Second, the Supreme Court has held time and again that the First Amendment’s guarantee of freedom of speech protects not only what we want to say, but also what we don’t want to say.  When government forces a person to articulate, speak, promote, or in other forms communicate a message, that is almost always impermissible compelled speech. Therefore, teachers, professors, and other employees cannot be compelled to use a person’s preferred pronouns contrary to their consciences, biology, human nature, and reality.

And finally, as people of faith, we are called to stand firm and hold to the traditions that we were taught, either by our spoken word or by our letter (2 Thessalonians 2:15). That means standing up against compelled speech that seeks to coerce Christians into adopting a lie that completely undermines their entire beliefs. While taking a stand will not be easy—in fact, it may cost you money, employment, and your reputation—we are called to be strong and courageous, and we know that the Lord your God who goes with you and He will not leave you or forsake you. (Deuteronomy 31:6)

This is far bigger than simply using certain pronouns. It is about being able to follow your conscience or deeply held religious beliefs without the government forcing you to violate them.

“When people fear the government, there is tyranny. When the government fears the people, there is liberty.” – Thomas Jefferson