Proposed regulation making “gender identity” a protected characteristic will create new harassment and havoc in workplaces. 

Read WoLF’s public comment here

On September 29, 2023, the Equal Employment Opportunity Commission (EEOC) released a docket titled “Proposed Enforcement Guidance on Harassment in the Workplace.” 

Most of this document is reasonable, defining terms around workplace harassment and detailing what makes a work environment hostile. But one section of this document garnered controversy: Section IIA, which defines which characteristics are protected. The document claims:

“Sex-based discrimination includes discrimination based on sexual orientation and gender identity. … Examples include… 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.”

WoLF is no stranger to the argument that an individual’s “gender identity” should be protected under civil rights laws that disallow sex discrimination. Indeed, the EEOC’s Proposed Guidance, as well as many of the attempts we’ve seen to remove Title IX protections, link back to Bostock v. Clayon County. But while removing women’s protections in education comes from misinterpreting the decision to apply past Title VII employment law, the authors clearly do not realize how many additional problems including “gender identity” as a protected class would create.

This oversight has not gone unnoticed by the public. Over 32,000 public comments were submitted, many stressing the harm to women needing safe spaces, and problems for employers in having to police customers and employees from misgendering, when gender is fluid, as defined by gender ideology. Comments also protested violation of free speech and freedom of religion that comes from enforcing belief in gender ideology over sex-based reality, and the disaster this would cause for small businesses.

Indeed, under these proposed guidelines, a business could find itself in a harassment lawsuit due to their employees’ personal posts on social media, past or present. Those can now be used to constitute a complaint of a ‘hostile work environment’.

What does WoLF’s public comment say?

WoLF’s public comment focuses on the ways misinterpreting sex-based discrimination to include “gender identity” codifies and even encourages some forms of harassment against women and girls.

In fact, there are several other protected characteristics that suffer when people are forced to honor “gender identity” at work.

• Sex: It has long been established that women need access to single-sex restrooms in order to comfortably work outside the home. Changing the word “woman” from referring to a sex class to a “gender identity” that any man can identify into removes this protection.

• Religious freedom: Following this rule means women whose religions prevent them from sharing intimate spaces with men, such as Muslim women or Orthodox Jewish women, cannot have their religious boundaries respected at work.

• Disability status: Some disabilities can prevent or hinder employees from following “misgendering” rules when told. People whose disabilities impact social functioning may not understand why they have to make statements implying something they don’t believe, rather than accepting the rule on its social basis alone. People whose disabilities cause problems with memory may forget, through no control of their own, that their coworker has a “gender identity.” People whose disabilities impact language processing may struggle with a new lexical rule.

Furthermore, rather than protecting vulnerable people, this new rule creates loopholes that bullies and harassers can exploit to punish those around them.

• Sexual harassment: Cross-dressing and autogynephilia are both common and well-documented paraphilias among men; by dressing in women’s clothes in public and insisting that female coworkers refer to him as a woman, a man can compel female coworkers to participate in his fetish without their consent.

• Stalking behavior: We predict that most of the “misgendering” or “transphobic” harassment claims will name women as aggressors, regardless of how often male co-workers engage in similar behavior. In this way, selective monitoring outside of work can be used to target female coworkers.

• Aged personal social media posts create new liability for employers: Because “gender identity” is mutable, an employee could change their stated “gender identity” at any time. It could call into question social media posts made outside of work, possibly years ago, that refer to the person's previous “gender identity” or that don't support gender ideology. These older posts could now form a complaint of a hostile work environment, and an employer could be held liable, through no fault of their own, and certainly with no ability to control past social media postings.

These are just a few of the major concerns.  We are certain that if “gender identity” is allowed to subsume sex in employment law, we can expect disaster for women and small businesses. Luckily, the fight to uphold protections for women isn’t over yet, and you can always expect WoLF to be on the front lines fighting for a better world.

Read WoLF’s full comment here!