U.S. Senator Tommy Tuberville (R-Alabama), Sen. Ted Budd (R-North Carolina), and nine of their colleagues sent a letter to Secretary of State Antony Blinken demanding that 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 the one that biology correctly assigned to them at birth.
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.”
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 letter was also signed by Sens. Chuck Grassley (R-Iowa), Thom Tillis (R-North Carolina), Marco Rubio (R-Florida), Mike Lee (R-Utah), Tom Cotton (R-Arkansas), James Lankford (R-Oklahoma), Josh Hawley (R-Missouri), JD Vance (R-Ohio), and Roger Marshall (R-Kansas).
Budd, Tuberville, and the other Senators wrote, “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.”
The letter continues, “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.”
The Senators ask for Blinken to answer a number of questions about this policy, including identifying the specific legal authority relied upon to issue this guidance.
Senator Tommy Tuberville represents Alabama in the United States Senate and is a member of the Senate Armed Services, Agriculture, Veterans Affairs, and HELP Committees.
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