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Federal judge rules Texas employers can discriminate against LGBT-'related conduct'
Washington, D.C.

An LGBT Texan can be fired from a job because of the way they dress, their pronouns or the bathroom they use, a federal judge ruled.

The ruling stemmed from a suit Texas brought in September of last year, just months after the Biden administration issued guidance showing states how to comply with federal anti-discrimination protections. A federal judge in Tennessee had already stayed the directives in 20 other states as part of a separate court case.

In a 33-page ruling, U.S. District Court Judge Matthew Kacsmaryk said the Biden guidance incorrectly interpreted the 2020 Supreme Court decision in Bostock v. Clayton County, which held that workplace discrimination based on sexuality or gender identity is unconstitutional.

Kacsmaryk said the White House misread the ruling to mean that it created a "catchall protected class" for LGBT expression in public when it did not.

A Trump appointee, Kacsmaryk's selection was highly criticized by civil rights groups and Democrats who pointed to his previous anti-LGBT statements as proof he would not be impartial.

In commentary pieces in 2015 — two years before his appointment — Kacsmaryk referenced Catholic teachings saying “homosexual acts are intrinsically disordered” and said “sexual revolutionaries” had prioritized the “erotic desires of liberated adults” over marriage and the unborn child.

The Department of Justice, which represents the federal government in court, did not immediately respond to a request for comment on whether it will appeal, as it did in the Tennessee case.

The Kacsmaryk ruling issued Saturday marked a major victory for Texas Attorney General Ken Paxton, who has heightened his focus on restricting LGBT rights in recent years, framing the issue as being primarily about health and safety.

“The court’s decision is not only a win for the rule of law, but for the safety and protection of Texas children,” Paxton said in a statement. “The Biden Administration’s attempts to radicalize federal law to track its woke political beliefs are beyond dangerous. I will continue to push back against these unlawful attempts to use federal agencies to normalize extremist positions that put millions of Texans at risk.”

Paxton is running for a third term in November’s general election; recent polls show his race against Democrat Rochelle Garza is likely to be the closest statewide contest.

Garza, a former ACLU attorney, has said she plans to create a civil rights division within the attorney general’s office to litigate discrimination cases.

“Once again, criminally-indicted Ken Paxton is focusing on political grandstanding and litigating extremist, harmful policies that hurt some of the most vulnerable in Texas," Garza said in a statement, referring to Paxton's still-unresolved securities fraud indictment from 2015. "Paxton should be in trial answering for his crimes instead of putting trans Texans at risk. As attorney general, I will work to protect every Texan.” 

The Biden administration in the spring and summer of last year advised U.S. employers that a number of workplace policies would violate the Bostock decision, such as blocking a trans person from dressing in clothes or using a bathroom facility consistent with their gender identity.

Kacsmaryk pointed out that Justice Neil Gorsuch in his majority opinion in Bostock explicitly brushed off employers’ concerns that the ruling would open the door to future cases on bathroom use, health care and other battlegrounds for LGBT rights. Gorsuch said the justices were not "prejudg(ing) any such questions."

“Curiously, the guidances imply and defendants continue to argue that Bostock's reach exceeds the grasp of its author," Kacsmaryk wrote.

The U.S. Department of Health and Human Services and Equal Employment Opportunity Commission had argued that “being” and “conduct” are “inextricably intertwined.”

The state of Texas interpretation endorsed by Kacsmaryk "would narrow the protections afforded by that law until they vanished entirely,” the federal government argued.

Kacsmaryk cited six previous Supreme Court and other federal appellate court cases that showed that the two are not always viewed as the same under the law.

Opining on a separate Biden Administration guidance, Kacsmaryk disagreed it would violate the Affordable Care Act for federally funded entities to deny gender-affirming care to transgender patients.

Kacsmaryk also disagreed that gender dysphoria could qualify as a disability under federal anti-discrimination law.

That guidance issued over the summer by the Equal Employment Opportunity Commission came out after Paxton issued an opinion this February finding that the care could constitute child abuse. Gov. Greg Abbott then directed the state’s child welfare agency to begin investigating parents of transgender children who received the care.