Bench Memos

Law & the Courts

EEOC’s Transgendered Mutilation of Reality

“On this record, there is no cause to question that Complainant—who was assigned the sex of male at birth but identifies as female—is female.” (Emphasis in original.)

Never mind that the record in question indicates that the complainant, who recently changed his legal name from Todd Lusardi to Tamara Lusardi, wasn’t arbitrarily “assigned the sex of male at birth” but is in fact genetically male and, yes, even retains (or, at least at the time of the events in question, retained) male genitalia. Anyone who thinks that “there is no cause to question” that Lusardi “is female” is an idiot or a lunatic.

Alas, it turns out that three members of the Equal Employment Opportunity Commission—Jenny R. Yang, Chai R. Feldblum, and Charlotte A. Burrows—are idiots or lunatics, for the passage I quote is from a recent EEOC decision, adopted by a 3-2 vote on, fittingly, April Fool’s Day. That decision, rendered against the Department of the Army, holds that Lusardi was “subjected to disparate treatment on the basis of sex” when he (the decision uses female pronouns for him) “was denied equal access to the common female restroom facilities.” It also holds that he was subjected to a hostile work environment “based on sex.” Part of the evidence in support of that holding was that a supervisor used male pronouns to refer to him (and “Sir” to address him).

Whenever anyone points out the elementary biological reality that a man who identifies as a woman—yes, even a man who drugs and mutilates himself to appear more like a woman—is nonetheless still a man, transgender activists insist that gender is fundamentally different from sex. But the EEOC has now ruled that an employer engages in discrimination on the basis of sex when it treats a man who thinks he’s a woman the same as it treats all other men—by barring all of them from using female restroom facilities.

What’s more, even though Lusardi did not complain about it, the EEOC goes out of its way in a footnote to opine that his employer unlawfully deprived him of the “use of common locker and shower facilities that non-transgender employees could use.” In other words, according to the EEOC majority, it’s unlawful sex discrimination to bar a man who thinks of himself as a woman from sharing locker and shower facilities with women.

There is a lot more of this craziness to come, and it will soon reach a work location near you. According to someone who is very well informed about the EEOC, the EEOC issued the decision because it has filed suits against employers about transgender employees and plans to file more very soon, and it wants its litigators to be able to cite something as legal support for its adventuresome claims.

To be clear: I believe that individuals who identify as “transgender” should receive compassionate help. But that shouldn’t entail requiring everyone else to indulge and embrace their confusion.  

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