Washington, D.C. — Senator Ted Budd (R-NC) and 10 other U.S. Senators have sent a letter to Secretary of State Antony Blinken demanding he rescind the State Department’s latest guidance which threatens termination if an employee refuses to use another employee’s chosen gender pronoun instead of one that corresponds to the employee’s birth sex.
In the letter, the Senators highlight that the State Department guidance, “is potentially illegal” because it “infringes upon the First Amendment rights of State Department employees, as recognized by the Supreme Court, to speak openly on matters of public concern”.
Also, the letter details how the guidance violates the Religious Freedom Restoration Act (RFRA) “by forcing employees to choose between facing disciplinary action and complying”.
The signers of this letter include:
- Sen. Ted Budd (R-NC)
- Chuck Grassley (R-IA)
- Thom Tillis (R-NC)
- Marco Rubio (R-FL)
- Mike Lee (R-UT)
- Tommy Tuberville (R-AL)
- Tom Cotton (R-AR)
- James Lankford (R-OK)
- Josh Hawley (R-MO)
- JD Vance (R-OH)
- Roger Marshall (R-KS)
We write to demand that you rescind the recent State Department guidance for employees titled “Updated Department Guidance Regarding Transgender Employees in the Workplace” (“Guidance”). We understand that you personally approved and signed the Guidance and authorized its electronic transmission via the attached, unclassified cable on your behalf to all State Department employees.
The Guidance forces every State Department employee—without exception—to comply with any demand by another employee to use that employee’s choice of name, pronouns, or honorific. According to the Guidance, failure to comply may “contribute to a hostile work environment allegation, and constitute misconduct subject to disciplinary action, up to and including separation or removal.” This is potentially illegal for multiple reasons.
First, Congress never authorized the State Department to impose such restrictions on employee speech. But even if Congress did so, this Guidance would be arguably unconstitutional. Specifically, this Guidance infringes upon the First Amendment rights of State Department employees, as recognized by the Supreme Court, to speak openly on matters of public concern and to be free from government-compelled speech, including government-compelled affirmation of contested political, social, and religious ideas. Accordingly, the U.S. Court of Appeals for the Sixth Circuit recently recognized that “the use of gender-specific titles and pronouns” constitutes such a matter of public concern; thus, government employees have the right to speak openly on this subject, or not to speak at all.
Moreover, this Guidance creates a hostile work environment for dissenting employees, in violation of Title VII of the Civil Rights Act of 1964, for failing to provide a religious accommodation for dissenters. Several State Department employees have voiced their concerns with this Guidance to Senators, stating that they cannot comply with this Guidance without violating their religious beliefs. Indeed, by forcing employees to choose between facing disciplinary action and complying with this Guidance, the Guidance violates the Religious Freedom Restoration Act (RFRA), which was enacted “to provide very broad protection for religious liberty.” It may even constitute a violation of the “No Religious Test Clause” of the Constitution by discriminating against those with certain religious views from holding a position within the State Department. Lastly, we understand that the State Department adopted this major policy change behind closed doors, thus preventing it from receiving any scrutiny by the press or the broader public. Such a major policy change, which threatens severe consequences against State Department employees for noncompliance, deserves rigorous, public scrutiny.
Secretary Blinken, you have declared that “[dissent] should be and it will be welcomed” at the State Department. You have also warned that “[w]hen religious liberty is at risk” then “other freedoms are jeopardized as well.” Therefore, we call on you to adhere to your oath to uphold the Constitution and federal law, and to live up to your own public commitments, by formally and publicly rescinding this Guidance immediately.
Accordingly, please provide written responses to the following no later than November 3, 2023:
- Please identify the specific legal authority you relied upon to issue this Guidance.
- Are there exceptions, whether religious or non-religious, to this Guidance? If the answer is yes, then please describe these exceptions, including the following:
- the process for an employee to seek to obtain such an exception,
- the efforts you have made to inform employees about this process, and
- the efforts you have made to inform employees that those seeking exceptions may not be subject to retaliation, discrimination, or other mistreatment.
- If there are no exceptions to this Guidance, then please provide a justification for the lack of exceptions, including how such a policy complies with the First Amendment, RFRA, and Title VII.
- Please describe every phase of the process by which the State Department could seek to impose disciplinary action for an alleged violation of this Guidance, including but not limited to the following:
- initiation of investigation,
- imposition of disciplinary action.
- Please describe the standard that the State Department will use to determine that an alleged violation of the Guidance:
- contributed to a hostile work environment,
- warranted disciplinary action, or
- warranted separation or removal.
- Please provide an accounting of whether State Department employees have been or are, due to alleged violation of the Guidance:
- under investigation, or
- are or have been subject(ed) to disciplinary action, or
- have been separated or removed from the State Department.
- Please describe the role that this Guidance could play in the
- hiring process,
- performance ratings,
- promotion decisions, or
- any other employment decision other than disciplinary action.
- Please describe what efforts, if any, the State Department has undertaken or will undertake to address any conflicts between this Guidance and local cultural beliefs, including conflicting, local cultural beliefs held by locally employed, State Department employees in host countries who are foreign nationals, and who are, as all State Department employees, required to adhere to this Guidance.