The EEOC is trying to make ‘misgendering’ a thought-crime

A federal government obsessed with gender ideology has decided that “misgendering” is now a thought crime. And it is dead set on muzzling religious objectors.  

The Equal Employment Opportunity Commission, an ostensibly bipartisan federal agency in charge of investigating complaints of employment discrimination in the workplace, has proposed a new “enforcement guidance” that designates the failure to use someone’s preferred pronouns as harassment.

“Misgendering” is one of the new mortal sins of the secular catechism. And there is no recourse in the EEOC’s new enforcement guidance for those with sincerely held religious beliefs that it is wrong to deny the actual biological sex that God has assigned to each human being. 

Back in 2020, the Supreme Court expanded the reach of Title VII’s prohibition on sex discrimination in the workplace in Bostock v. Clayton County. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” wrote Justice Neil Gorsuch for the 6-3 majority.  

 The Biden administration pounced upon Gorsuch’s judicial misstep. On the day of his inauguration, President Biden issued an Executive Order announcing that “it is the policy of my administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation” and directing federal agencies to implement this policy.

Consistent with this order, the EEOC issued a “fact sheet” in June 2021 that took huge liberties with what constitutes discriminatory harassment based on gender identity. A district court subsequently declared the guidance unlawful and set it aside, but ideologues within the administration naturally tried again.

The EEOC’s newly proposed guidance similarly includes “Sexual Orientation and Gender Identity” as the basis for prohibited “sex-based discrimination” under Title VII and asserts that “sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed.”

“Harassment,” according to this guidance, includes epithets and physical assault as well as “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering).” Also included as a form of harassment is “the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”  

So, what about employers and employees who are not willing to abandon traditional religious beliefs grounded in biological reality in order to adopt “preferred pronouns”? The guidance is unforgiving: “Employers do not (and cannot) provide Title VII religious accommodations for behavior that is considered harassment.”  

Significantly, this blatant disregard for religious beliefs is at odds with the Supreme Court’s decision in Bostock. The majority opinion noted that the Court did not address “claims concerning the employment relationship between a religious institution and its ministers.” The Supreme Court also explained that the Religious Freedom Restoration Act — a statute that prohibits the federal government from substantially burdening the exercise of religion — “might supersede Title VII’s commands in appropriate cases.”

And, finally, the Supreme Court made clear that “while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”

So now we are at a crossroads. The EEOC’s proposed enforcement guidance will require covered employers, employees, and even customers to bow to the unrelenting demands of gender ideology, with absolutely no regard for religious objections. 

The EEOC will be accepting public comments on its new enforcement guidance until Nov. 1. Those who support the bedrock principle of religious freedom — the first freedom in the Constitution — should let our voices be heard. 

Andrea Picciotti-Bayer is director of the Conscience Project.