The U.S. Senate narrowly confirmed Kalpana Kotagal, President Joe Biden’s pick to serve on the Equal Employment Opportunity Commission, in a move critics warn 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 before voting Thursday not to confirm the employment lawyer to the EEOC.

“The Equal Employment Opportunity Commission was created to combat racism and sexism in the workplace,” Cruz said, “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.”

The Senate confirmed Kotagal by a vote of 49-47, mostly along party lines. Sen. Joe Manchin, D-W.Va., bucked his party on Biden’s nominee, but other vulnerable Democratic senators—and independents who caucus with Democrats—toed the party line.

Not voting were Sen. John Fetterman, D-Pa., and three Republicans: Marsha Blackburn of Tennessee, Josh Hawley of Missouri, and J.D. Vance of Ohio. The offices of the GOP lawmakers didn’t immediately respond to The Daily Signal’s request for comment on why they didn’t vote on Kotagal’s nomination.

Sen. Hawley’s office reached out after publication, noting that the senator traveled to St. Louis and visited the Jana Elementary School and Coldwater Creek, areas affected by decades-old nuclear waste from the Manhattan Project.

“It is clear from her prior work with far-left progressive organizations, including a group that wants to ban fossil fuels, that Ms. Kotagal does not represent West Virginia values and would prioritize a partisan agenda over creating commonsense, bipartisan solutions that bring our nation forward,” Manchin told The Daily Signal in a statement Thursday. “Ultimately, I did not support Ms. Kotagal because the EEOC should remain as free as possible of partisan ideologies when making important decisions for America’s workers and businesses.”

“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 written 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.”

Rubinstein called on House Republicans to use “budgetary and oversight tools to rein in EEOC overreach” and said conservative lawyers should use Freedom of Information Act “investigations and litigation to defend against EEOC’s transgender agenda.”

The Equal Employment Opportunity Commission 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.

Kotagal will fill a vacancy on the five-member EEOC. Two incumbent commissioners are Republicans appointed by then-President Donald Trump (Keith Sonderling and Andrea Lucas), and two are Democrats appointed by Biden (Chair Charlotte Burrows and Vice Chair Jocelyn Samuels).

Kotagal’s confirmation not only gives Democrats the majority but removes a check on the commission’s advocacy for transgender ideology.

The new EEOC member specializes in employment law and “diversity, equity, and inclusion,” also called DEI. She partnered with film executive Fanshen Cox DiGiovanni and Stacy Smith, a University of Southern California communications professor, 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.

Among other things, the “inclusion rider” requires a company to keep specific data—provided to an “EXPERT”—tallying how many of those involved in a project’s production “self-identified as” transgender.

In 2021, Kotagal represented the Transgender Legal Defense and Education Fund in suing Aetna to force the insurance 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 policyholders who claim to identify as transgender.

Critics say Kotagal will tip the balance of the EEOC in favor of transgender activism, which the five-member commission already has shown signs of supporting.

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 law 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,” a graphic that separates “gender identity” and “gender expression” from “sex assigned at birth.”

Critics claim that adoption of these terms involves an acceptance of an ideology implying that biological sex is socially constructed, rather than a central reality of humanity that enables humans to reproduce. 

Transgender ideology consists of 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.

Here are the senators who voted for Kotagal (all are Democrats or independents who caucus with Democrats):

Arizona’s Mark Kelley and Kyrsten Sinema (I)

California’s Alex Padilla and Dianne Feinstein

Colorado’s John Hickenlooper and Michael Bennet

Connecticut’s Richard Blumenthal and Chris Murphy

Delaware’s Tom Carper and Chris Coons

Georgia’s Raphael Warnock and Jon Ossoff

Hawaii’s Brian Schatz and Mazie Hirono

Illinois’ Dick Durbin and Tammy Duckworth

Maine’s Angus King (I)

Maryland’s Ben Cardin and Chris Van Hollen

Massachusetts’ Ed Markey and Liz Warren

Michigan’s Gary Peters and Debbie Stabenow

Minnesota’s Amy Klobuchar and Tina Smith

Montana’s Jon Tester

Nevada’s Jacky Rosen and Catherine Cortez Masto

New Hampshire’s Maggie Hasson and Jeanne Shaheen

New Jersey’s Corey Booker and Bob Menendez

New Mexico’s Ben Ray Lujan and Martin Heinrich

New York’s Kirsten Gillibrand and Chuck Schumer

Ohio’s Sherrod Brown

Oregon’s Jeff Merkley and Ron Wyden

Pennsylvania’s Bob Casey

Rhode Island’s Sheldon Whitehouse and Jack Reed

Vermont’s Bernie Sanders (I) and Peter Welch

Virginia’s Tim Kaine and Mark Warner

Washington’s Maria Cantwell and Patty Murray

Wisconsin’s Tammy Baldwin

This report has been updated to include The Daily Signal’s attempts to seek comment from Blackburn, Hawley, and Vance on why they didn’t vote. It has also been updated to include the response from Hawley’s office.

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