Last week Ohio Attorney General Dave Yost joined attorneys general of 19 other states in a lawsuit demanding that the U.S. Department of Education (DOE) and the Equal Employment Opportunity Commission (EEOC) be prevented from implementing and enforcing protections against discrimination based on sexual orientation and gender identity. The complaint, filed in Tennessee, was brought solely by Republican AGs. You will not be surprised, then, to learn that it’s less a bona fide legal challenge than it is an exercise in political grandstanding in the continuance of Republicans’ never-ending culture war.
The suit has its roots in 2020’s landmark Supreme Court decision in Bostock v. Clayton County in which the court held that Title VII of the Civil Rights Act of 1964 protects employees from being fired because they are gay or transgender. President Biden signed an order implementing that ruling across federal agencies the day he took office. In June, both the EEOC and DOE issued anti-discrimination guidelines covering the workplace, which flows directly from Title VII, as well as schools that receive federal funding pursuant to Title IX.
The issuance of such guidelines is the exact opposite of controversial. Indeed, issuing such guidelines, and notifying the public how they will be enforced in the future, is the very purpose of these agencies. It is what they have done after every new anti-discrimination law is passed by Congress and every Supreme Court case that alters the legal landscape in this area. And while, yes, it is often the case that such enforcement guidelines are subjected to legal challenges, rarely are the challenges as dumb and disingenuous as the one Dave Yost and his 19 friends just filed.
With respect to the EEOC, their argument is, essentially, “Bostock only said you can’t fire someone for being gay or transgender; it never said you can’t discriminate against gay and transgender people who still work for you!” With respect to the DOE, the lawsuit says that Bostock was a workplace discrimination suit and thus didn’t have anything to do with education. Never mind that Title IX’s language prohibiting discrimination “on the basis of sex” is nearly indistinguishable from the language in Title VII’s prohibition of discrimination “based on sex,” and that the courts have routinely held that the same federal anti-discrimination considerations apply to both the workplace and education settings.
Which is to say that the lawsuit Yost just signed on to is the legal equivalent of your older brother saying, “Mom told me to stop hitting you; she never said I have to stop kicking you.”
Sadly, however, it’s not an unprecedented approach in the wake of civil rights cases with which people like Yost disagree. Indeed, it was exactly this sort of willfully obtuse interpretation of landmark civil rights cases such as Brown v. Board of Education and the laws enacted during the Civil Rights Movement that served as a pretext for intellectual and legal foot-dragging called “Massive Resistance,” which hindered anti-discrimination progress for decades.
There is a key difference between Civil Rights Movement-era foot-draggers and Yost, however. The former really, truly and openly despised the very notion of racial progress, while Yost and his fellow attorneys general claim their opposition to the DOE and EEOC rules is not a matter of homophobia and transphobia. “This case is not about the wisdom of the administration’s policy. It is about power,” Yost said last week.
One can choose to take Yost at his word on that, but on some level it doesn’t matter — partially because what we do is far more important than what we say, but also because Yost’s primary endgame here is not all that different from the secondary endgame of the “massive resistance” politicians of the 1950s and 60s: stoking bigoted resentment among voters as a means of benefitting from it politically.
Even if Yost, to use a hackneyed phrase bigots like to use, doesn’t have a homophobic or transphobic bone in his body, he, like many other Republicans, sees the value in making Republican voters at least think he shares their bigotry. Whether this lawsuit goes anywhere — and I do not think it will go anywhere — Yost still wins if he is given credit by Republican voters for fighting back against gay and transgender progress and otherwise leading the fight against the alleged “woke mobs” out there. He will be able to say, when he runs for reelection or when he seeks to become governor one day, that he tried.
Just like he can say that he tried when he launched investigations into and lawsuits against Facebook and Google — actions that are mostly about signaling to elements of the far right who erroneously believe that Big Tech censors conservatives. Just like when he filed an amicus brief in support of Donald Trump’s efforts to invalidate ballots cast in Pennsylvania and overturn the election. Just like when he signed on to a letter seeking to eliminate the teaching of Critical Race Theory in public schools despite the fact that Critical Race Theory is not taught in any meaningful way in public schools.
Yost is all about kabuki theater. Vice-signaling. Making sure that whatever reasonable positions he held in the past or any reasonable things he’s said in public are not held against him as he attempts to secure the support of a party that has long since blown past unreasonable and has driven itself straight into the land of the unhinged. And that’s how this lawsuit should be viewed, as well. An effort that’s not unlike what we’re seeing from U.S. Senate hopeful J.D. Vance. An effort aimed at shaping his political image into what a Republican’s political image all but has to be in the Age of Trump.
Vance’s efforts are pretty ham-fisted, as he’s shamelessly contradicting countless things he’s said and done since emerging into the public eye five years ago. Yost’s moves, which get less publicity and which are done under the cover of official acts, are a bit slicker. But they’re the same basic efforts.