Attorney General Bonta Urges Appellate Court to Reject Attack on Federal LGBT Anti-Discrimination Protections

Thursday, December 22, 2022
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OAKLAND – California Attorney General Rob Bonta today led a coalition of 19 attorneys general in an amicus brief in Tennessee v. Department of Education in support of the rights of the more than 20 million lesbian, gay, bisexual, and transgender (LGBT) Americans to live, work, and pursue education free from discrimination. Under U.S. Supreme Court precedent, federal protections against sex-based discrimination necessarily guard against discrimination on the basis of sexual orientation and gender identity in both schools and the workplace. However, in a challenge to recent guidance issued by the U.S. Department of Education and the U.S. Equal Employment Opportunity Commission currently before the U.S. District Court of Appeals for the Sixth Circuit, a group of states led by Tennessee seek to undermine the established interpretation of the law and its protections against LGBT discrimination. In the friend-of-the-court brief, the coalition highlights the pervasive harms of such discrimination and urges the appellate court to reject the current attack on LGBT rights should the court address the substantive challenge raised by the plaintiffs.

“The law is clear: LGBT Americans, like all Americans, are entitled to live, work, and pursue education free from discrimination,” said Attorney General Bonta. “The highest court in the land has explicitly recognized that discrimination on the basis of sexual orientation and gender identity is a form of sex-based discrimination. We cannot and will not stand idly by in the face of efforts to claw back the rights of our residents. I urge the appellate court to reject Tennessee’s pernicious attack on our nation’s anti-discrimination laws.”

Discrimination on the basis of sex against LGBT individuals is especially damaging in employment and education, the contexts addressed by the two guidance documents at issue in this appeal. When employees do not have legal protection from anti-LGBT discrimination — including protected access to bathrooms, the ability to dress consistent with their gender identities, and protection against pronoun misuse contributing to a hostile work environment — these employees and the states in which they live and work incur significant harms. Such harms can be economic, physical, and psychological in nature. Discrimination against LGBT individuals also directly threatens the interests of states. Workers who lose their employment due to discrimination are often forced to seek public assistance, as are individuals unjustly deprived of educational opportunities. As a result, states expend greater sums to ensure that victims of discrimination are supported and lose out on tax revenue.

Accordingly, the coalition states have a strong interest in ensuring that federal laws intended to protect LGBT individuals from discrimination are recognized and enforced. The coalition states rely on Title VII of the Civil Rights Act of 1964 (Title VII) and Title IX of the Education Amendments of 1972 (Title IX) to protect their residents, workers, and students from discrimination. The guidance documents at issue in this case correctly effectuate these statutes’ mandates, in turn making them more effective and of greater benefit to the states and their residents. The common experience of the coalition states shows that protecting LGBT residents, workers, and students from discrimination on the basis of sex dramatically improves economic, psychological, health, employment, and educational outcomes for these individuals, yielding broad benefits, without compromising privacy or safety, or imposing significant costs.

In the amicus brief, the coalition asserts:

  • LGBT students and employees face myriad concrete harms that the challenged guidance is meant to prevent and redress;
  • The guidance issued by the U.S. Department of Education and Equal Employment Opportunity Commission reflects clear precedent interpreting Title VII and Title IX;
  • If the appellate court reaches the plaintiff states’ substantive challenge to the guidance, it should uphold that guidance; and
  • Amici states have enacted numerous laws similar to the challenged guidance, providing important societal benefits without compromising privacy or safety.

In filing the amicus brief, Attorney General Bonta is joined by the attorneys general of Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Washington. 

A copy of the amicus brief is available here.

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