EEOC Institutes One-Click Ordering

June 18, 2021

No lines, no waiting, no jostling with strangers -- one Biden administration official has decided that policymaking should be treated like online shopping. Charlotte Burrows, Chairwoman of the Equal Employment Opportunity Commission (EEOC) posted guidance that dramatically redefined "sex" beyond anything else in federal law. Burrows acted unilaterally, and that's a big no-no. According to former Trump official Roger Severino, "You cannot, as a commissioner alone, rule for the entire EEOC."

While I served as chairman of the U.S. Commission on International Religious Freedom, I did not have authority to make decisions for the entire commission. I had to get the other commissioners to sign off. That's how commissions work. Andrea Lucas, another EEOC commissioner, lamented that Burrows chose to go it alone, "instead of working with the full Commission to issue guidance approved by a majority vote of the Commission."

As you might expect, the "lone wolf" attitude isn't the only issue with Burrows' guidance. Burrows evaded the commission because she knew the logic of her guidance would never pass muster. The guidance assumes the Supreme Court's decision in Bostock opened Pandora's box on redefining "sex" in employment discrimination law. In bathrooms, pronouns, dress codes, and more, the unilateral guidance directs private businesses to redefine "sex" to include sexual orientation and gender identity.

But the Bostock decision explicitly limited the scope of the ruling to hiring and firing alone. Lucas responded, "this sleight of hand is inexplicable when juxtaposed with the Court's decision in Bostock, including its express statements that its decision did not concern, much less resolve, some of these critical issues." According to Severino, the guidance "purports to apply Supreme Court case law to something that it doesn't actually say it does." This should be a good reminder to bureaucrats that critically examining proposed regulations should mean more than comparing them with one's own personal feelings.

This guidance also serves as a bad example for those tempted to replace actual case law with their own personal ideologies. Severino wrote, "Chief among the mistakes is the idea that Bostock ruled on the amorphous, infinitely multiplying concept of gender identity." For all of its wrongheadedness, the Bostock decision treated sex as a binary (there are two options, male and female). But Burrows' guidance often leaves room to interpret "gender identity" according to the vogue -- and wrong -- theory that gender exists on a spectrum between male and female, with many other possible identities in between. Beware: being forced to contemplate notions this distorted for too long can drive you to the brink of madness.

Have you ever noticed how the Left tries to sneak all the worst policies in through the back door? This guidance -- issued by one unelected bureaucrat -- is no exception. The Left will argue that there's no harm in one Commissioner unilaterally issuing this guidance because no one is bound to follow it. But, Severino points out, "they want to have it both ways. They want to say that 'this is merely guidance. But watch out if you don't follow it to a tee, if you use the wrong pronoun, we're going to go after you.'" Most business owners aren't lawyers and prefer to err on the side of not getting sued, so they may voluntarily submit. "That's just another form of bullying," concluded Severino.