Ag Commissioner Sid Miller Doubles Down on Transphobic Dress Code
Legal experts told the Observer that the policy could open the Texas Department of Agriculture to discrimination lawsuits.
Texas Department of Agriculture (TDA) Commissioner Sid Miller has received an avalanche of media attention about a new memorandum that requires agency employees to dress “in a manner consistent with their biological gender.” First reported by the Texas Observer on Monday, the policy forces transgender, nonbinary, and gender-nonconforming employees into the closet by preventing them from expressing their gender identity.
In a Wednesday morning appearance on Spectrum News 1 Austin, Miller doubled down on his anti-trans bigotry.
“When a man comes dressed in drag or vice versa, it’s very disruptive; it’s not professional,” he told Spectrum. “We want you to come looking like you’re professional and representing.”
Miller further insisted that the policy revision was necessary after workers returned to the office after the pandemic.
“After COVID, when everyone was working from home, in their pajamas on their couch, they kind of brought that same attitude back to the agency,” Miller said, equating trans self-expression with having poor fashion sense.
The policy has been widely condemned by both legal experts and LGBTQ+ rights groups, who have suggested it could land the department in legal hot water. It is unclear how the policy could be implemented without threatening the rights of queer and trans workers.
The TDA memorandum conflates “sex” and “gender,” which are distinct. Sex entails a person’s reproductive organs, genitalia, and genetic markers while gender is a social construct reflected in the norms, roles, behaviors and assumptions that surround a person’s perceived sex. Trans and nonbinary people have a gender identity that differs from the sex they were assigned at birth. In addition, sex is far more complex than strictly male and female: Intersex people, whose reproductive or sexual anatomy doesn’t meet the normative definition of either sex, make up as many as two in every 100 people in the United States.
Miller further lashed out on social media.
“Don’t be distracted by criticism,” reads one meme tweeted by the commissioner Thursday. “Remember, the only taste of success some people have is when they take a bite out of you.”
Minutes later, Miller followed with a transphobic meme in which a pregnant woman asks, “Is it a boy or a girl?” A doctor responds, “We’ll let the kindergarten teacher decide.” Miller added, “If you don’t see a problem with this, you are part of the problem” along with the hashtags #satire and #TwoBiologicalSexes.
The latter post once again confuses sex and gender, but also alludes to the scurrilous Republican talking point that LGBTQ+-friendly educators are “indoctrinating” or “grooming” children. Twitter recently removed its policy prohibiting transphobic hate speech.
The response from both advocates for LGBTQ+ rights and legal experts has been overwhelmingly negative.
“Whether an employee wears a dress or a suit has nothing to do with agriculture,” said Ricardo Martinez, CEO of Equality Texas, a nonprofit that protects the rights of LGBTQ+ residents.
Brian Klosterboer, an attorney with the ACLU of Texas, told the Texas Tribune: “State agencies should be focused on doing their jobs and not discriminating against their own employees and trying to make political statements through their agency regulations.”
In addition, both the Transgender Education Network of Texas (TENT) and Lambda Legal, the oldest and largest national legal organization dedicated to defending the rights of LGBTQ+ people, denounced the policy in interviews with the Observer.
“How are you going to test someone’s biological gender?” asked Andrea Segovia, senior field and policy advisor at TENT. “And why are [they] so obsessed with gender?”
Segovia suggested Miller was inspired by the dozens of anti-trans bills currently making their way through the Texas legislature. “It’s all connected. … It’s just one thing after another.”
Shelly Skeen, senior attorney at Lambda Legal, emphasized the decades of precedents that call the legality of the directive into question.
“From 1964 to now, we have a body of norms and case law” prohibiting policies like Miller’s, said Skeen, who taught classes on gender and the law before joining the nonprofit.
Courts have intervened to prohibit sex based-discrimination based on the Civil Rights Act of 1964. Title VII of the Act prohibits discrimination “because of … sex.” Thanks to the Supreme Court’s 2020 ruling in Bostock v. Clayton County, Title VII includes discrimination against LGBTQ+ people for their gender expression.
Austin Kaplan, founder and managing attorney of Kaplan Law Firm and a member of the Texas Employment Lawyers Association, noted that the new dress code could put the ag department at legal risk.
“[The dress code] would obviously be Exhibit A in any potential lawsuit for discriminatory treatment,” said Kaplan, whose firm has participated in civil rights litigation related to marriage equality.
Although Bostock addresses the issue of discrimination and gender expression at work most directly, both Kaplan and Skeen noted that an earlier case, Price Waterhouse v. Hopkins, first helped establish the case law surrounding gender and dress at work. In that case, plaintiff Ann Hopkins was denied a partnership at the international business firm because her gender presentation wasn’t deemed feminine enough.
“The reason given for why Ann Hopkins was not promoted to partner was that she could dress more ladylike, maybe wear makeup, and not be so gruff,” Skeen said.
Skeen said the case at its core was about gender presentation and whether a person could be penalized for it at work. Hopkins took the case to the Supreme Court in 1989, where a plurality of judges ruled in her favor. Though Bostock may have been the final legal blow to workplace discrimination over sexual orientation and gender identity, Skeen said some courts began ruling in favor of trans people in the ’90s.
“After Price Waterhouse, you start seeing Title VII cases that protect transgender people in the workplace,” Skeen noted. “When you discriminate against trans people, you’re discriminating against them because they don’t conform to sex stereotypes.”
Kaplan further explained that while the law allows for some forms of dress code, many companies avoid them altogether because of ambiguities in enforcement and potential liability.
“I don’t know what [dressing according to biological gender] means,” Kaplan said. “I can’t imagine that the employees or managers really know what that means.”
“It is no longer a best practice for companies to have dress codes like this because it can ultimately create liability for companies,” he added. “And that’s why companies have moved away from this—it’s old-school.”
Citing the recent $3 million settlement with Texas Attorney General Ken Paxton over the treatment of whistleblowers, Kaplan pointed out that Texas taxpayers would be forced to pay the bill for any resulting lawsuit over the ag department’s policy. Skeen, in addition to criticizing the policy’s numerous legal issues, castigated Miller and other Republicans.
“We’re selling ourselves short if we don’t recognize life is full of nuances and of all the differences that make us human and whole,” Skeen said.