The Senate will vote Wednesday on Kalpana Kotagal, whom President Joe Biden appointed to serve on the Equal Employment Opportunity Commission in a move critics claim will force transgender ideology on employers across America.
“I’m incredibly concerned about Kalpana Kotagal’s record of support for radical transgender ideology,” Sen. Ted Cruz, R-Texas, told The Daily Signal in a statement Wednesday. “The Equal Employment Opportunity Commission was created to combat racism and sexism in the workplace, but the woke Left is trying to use the EEOC to push its agenda on employers, and based on Kotagal’s record I think she will use her position to attack religious liberty and force her politics on Texas companies.”
“Under no circumstance should the Senate confirm Kalpana Kotagal to be a member of the EEOC,” Kevin Roberts, the president of The Heritage Foundation, said on Twitter. “Her appointment would turn the EEOC into an even more radical Commission with devastating effects on our businesses and communities.” (The Daily Signal is The Heritage Foundation’s news outlet.)
“Kotagal, if confirmed, may well turn the EEOC into the point of the spear for the radical gender ideologues,” Reed Rubinstein, director of oversight at America First Legal, told The Daily Signal in a statement Wednesday.
“Most large corporations promote gender ideology and punish workers who dissent,” Rubinstein argued. “But it is likely that the EEOC will focus on small and privately owned family businesses, many of which simply lack the resources needed to fight back effectively.”
He called on House Republicans to use “budgetary and oversight tools to rein in EEOC overreach” and conservative lawyers to use Freedom of Information Act “investigations and litigation to defend against EEOC’s transgender agenda.”
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee due to characteristics such as race, color, religion, sex, national origin, age, disability, or genetic information.
The current EEOC consists of four out of five commissioners, with the fifth slot currently vacant. Two commissioners are Republicans appointed by former President Donald Trump (Keith Sonderling and Andrea Lucas), and two Democrats appointed by Biden (Chair Charlotte Burrows and Vice Chair Jocelyn Samuels). Kotagal’s confirmation would give Democrats the majority and remove a check on the commission’s advocacy for transgender ideology.
Kotagal’s Record
Kotagal specializes in employment law and “diversity, equity, and inclusion.” She partnered with Stacy Smith, a University of Southern California communications professor, and film executive Fanshen Cox DiGiovanni to craft a template for an “inclusion rider,” a provision in an actor’s or filmmaker’s contract requiring diversity among casting and production staff.
The inclusion rider templates—available at Cohen Milstein Sellers & Toll, Kotagal’s law firm—require a company to overhaul its hiring practices, its practices for on-screen and off-screen projects, and more to promote the Left’s interpretation of “diversity.” The legal contract aims to support “under-represented groups” defined in this manner:
The term ‘under-represented group(s)’ means people who identify as women of
all backgrounds and identities, people who identify as Black, Indigenous, Asian American & Pacific Islander, or other Non-Black people of color, people of Hispanic or Latino descent, people with disabilities, Lesbian Gay Bisexual Transgender or Queer (‘LGBTQ+’) people, people over age 40, people from religious minorities, or people having a combination of these identities or attributes.
The rider also requires a company to adopt “gender-neutral facilities” and to deliver a “land acknowledgement.”
More specifically on transgender ideology, it requires the company to keep specific data—provided to an “EXPERT”—tallying how many people involved in the project’s production “self-identified as” transgender.
In 2021, Kotagal represented the Transgender Legal Defense and Education Fund in suing Aetna to force the company to cover “breast augmentation” surgeries for biological males who identify as female. Aetna agreed to revise its policy to consider “breast augmentation” surgeries medically necessary rather than cosmetic for certain policy holders who claim to identify as transgender.
Kotagal did not respond to The Daily Signal’s request for comment by publication time.
EEOC’s Transgender Advocacy
If the Senate confirms Kotagal, she would likely further the commission’s already substantial advocacy for transgender ideology, pushing it toward mandating the ideology on U.S. employers.
The EEOC interpreted discrimination on the basis of sex—banned in Title VII of the Civil Rights Act of 1964—to include sexual orientation and gender identity, despite the fact that Congress would not have passed the act with such a meaning in 1964. The EEOC has touted its advocacy for this interpretation, which the Supreme Court ultimately adopted in Bostock v. Clayton County (2020).
Yet the EEOC’s transgender advocacy goes far beyond this interpretation of federal law.
Internal documents obtained by The Heritage Foundation’s Oversight Project reveal that EEOC training sessions uncritically present a version of the “genderbread person,” which separates “gender identity” and “gender expression” from “sex assigned at birth.”
Critics claim the adoption of these terms involves an acceptance of an ideology that implies that biological sex is socially constructed, rather than a central reality of humanity that enables people to reproduce. Transgender ideology consists in presenting “gender identity” as the overriding characteristic, so that changing a person’s body to match a gender identity opposite his or her biological sex is redefined as “affirming,” rather than destructive.
EEOC’s employee user profile requires staff to select from a long list of pronouns, including not just the plural pronoun “they/them/theirs” but also exotic pronouns such as “xe/hir/hirs,” “ze/zir/zirs,” and “yo/yo/yos.”
The EEOC also appears to have pressured Microsoft into adding pronouns to profiles on “all Microsoft 265 platforms, including Outlook and Teams.”
In March 2022, the EEOC released a “glossary of terms” to encourage “respect in the workplace,” defining gender identity in various terms that prioritize a person’s stated identity over biological sex. Along with “transgender” and “cisgender” (the term for someone who identifies with his or her biological sex), EEOC endorsed “non-binary,” “genderqueer,” “genderfluid,” and “Two-Spirit.” EEOC does not appear to have adopted a limiting principle on the variety of “gender identities.”
Will the Senate Confirm Her?
It remains unclear if the Senate will vote to confirm Kotagal. While senators who caucus with Democrats hold the majority (51) over Republicans (49), many vulnerable Democrats may oppose her nomination. Sens. Joe Manchin, D-W.Va.; Jacky Rosen, D-Nev.; Kyrsten Sinema, I-Ariz.; and Jon Tester, D-Mont., did not respond to The Daily Signal’s repeated requests for comment on the vote by publication time.
This is a developing story and will be updated.
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