The U.S. Equal Employment Opportunity Commission took a hard line against Christian employers under President Biden, forcing them to pay for employees' hormone and surgical treatments to resemble the opposite sex, in violation of their religious beliefs, until a court blocked the action as unconstitutional a year ago.

Over the next eight months, the Christian Employers Alliance (CEA) won a six-figure settlement with EEOC and a likely four-year reprieve from federal scrutiny with the second election of Donald Trump, whose new EEOC is challenging gender-identity mandates in the workplace as sex discrimination under President Trump's executive order against "gender ideology."

The CEA and a Christian pro-life pregnancy center network aren't yet secure, however: The old regime may not be dead.

They filed to intervene as defendants last week in former Democratic EEOC Commissioner Jocelyn Samuels' lawsuit against Trump over his disputed authority to fire her before her five-year term ends. 

Trump also fired another Democrat, former Chair Charlotte Burrows, leaving the agency without a quorum of three commissioners after Republican Keith Sonderling became deputy Labor secretary last month, leaving GOP acting Chair Andrea Lucas and Democrat Kalpana Kotagal.

Days before Trump's inauguration, CEA also sued the EEOC for regulatory guidance that forces the group to use employees' preferred gender pronouns and "allow males to access female single-sex restrooms, locker rooms, and lactation rooms," and a regulation dramatically reinterpreting the Pregnant Workers Fairness Act to require "abortion leave."

"Under her controlling vote," with Democrats outnumbering Republicans 3-2, "EEOC twisted Title VII and the PWFA to impose gender-identity and abortion mandates on employers," their April 24 motion to intervene says. If Samuels prevails, "she will retain, restore, defend, and enforce the EEOC mandates" on CEA and Choices Pregnancy Centers of Greater Phoenix.

Louisiana and Mississippi attorneys general Liz Murrill and Lynn Fitch also sued to block the PWFA regulation from going into effect a year ago. 

Their case is still going, with the Justice Department informing the court March 26 that EEOC's Lucas plans to "reconsider portions" of the regulation she opposes once she has a quorum, so the feds will "rest on their briefing to date." 

A lawsuit by Texas AG Ken Paxton against the gender-identity guidance, which Lucas also opposes, is in limbo for the same reason.

In CEA's abortion-leave challenge, DOJ asked the court March 20 for a 60-day extension to answer, in light of "an extremely high volume of emergency litigation and significant staffing shortages," Trump's order and Lucas's statements.

The battle over Samuels' place on the commission is part of a broader war over the extent of the president's control over the executive branch, particularly independent commissions like the EEOC, the subject of a sweeping executive order in February. Trump also fired Democrat Alvaro Bedoya from the Federal Trade Commission, prompting his lawsuit.

Federal employees were reportedly told to drop preferred pronouns from their email signatures in light of Trump's orders, which also prompted Department of Health and Human Services guidance that defines sex as an "immutable biological classification" and a binary.

Trump won his fight to shutter the U.S. Agency for International Development and transfer many of its remaining responsibilities to the State Department, following revelations USAID partnered with private companies to censor purported disinformation and didn't fully vet foreign aid recipients for terrorists and fraudsters.

Abortion not a 'known limitation' or 'condition' related to pregnancy

Represented by the Democracy Forward Foundation, Samuels' lawsuit against Trump says his "efforts to hamstring the EEOC are consistent with and further his Administration’s efforts to turn back the clock on decades of established precedent protecting workers and job applicants from discrimination," but are also illegal.

Congress didn't give the executive the authority to remove commissioners at will, she said, and the staggered five-year terms, cap on commissioners from the president's party and authority to "appoint a new member each year," with Senate advice and consent, show Congress intended "continuity, stability, and insulation from political pressure" for EEOC.

"Because the Commissioners perform predominantly quasi-judicial and quasi-legislative functions, these restrictions on the president’s removal authority are constitutional," said Samuels, who has also accused Lucas of acting without authority by demanding "extensive information" on big law firms' diversity, equity and inclusion practices.

Even Biden's EEOC seemingly contradicted his direction, suing employers for refusing religious exemptions to COVID-19 vaccine mandates nearly two years after Biden accused the Supreme Court of endangering lives by blocking his own employer vaccine mandate.

"The commonsense constitutional proposition that the President should be able to set policy for executive branch agencies –and thus to hire and fire agency heads – is on full display here where the relevant official imposed harmful and illegal mandates inconsistent with the President’s agenda," Thursday's motion to intervene in Samuels' suit says.

Trump properly removed Samuels for refusing to rescind the gender-identity mandate, which is based on a "misreading" of PWFA and Title VII of the Civil Rights Act, it says.

Filed on behalf of CEA and the pro-life pregnancy center network by the Alliance Defending Freedom, the motion highlights the "vast" power of the EEOC through Title VII and the PWFA, which apply to all employers with 15 or more employees. It can investigate, serve discrimination charges, use "informal methods" of compulsion and bring civil actions.

Congress based Title VII on the sexual binary, and the law's plain terms do "not require employers to make exemptions from workplace policies to facilitate expression of an employee’s gender identity," the filing says. 

Similarly PWFA is silent on abortion, which is not a "known limitation" or "condition" relating to pregnancy but "a procedure," which is why its sponsor, Pennsylvania Democratic Sen. Bob Casey, said the EEOC "could not" require abortion leave or force employers to provide abortions against state law, the motion says.

The regulation is breathtaking in its mandates on employers, not only requiring them to grant abortion leave but preventing them from "speaking pro-life beliefs" or "enforcing life-affirming workplace policies against employees who engage in conduct contrary to those policies," the plaintiffs argue.

Courts have already blocked the gender-identity guidance and abortion regulation pertaining to specific religious plaintiffs based on their lack of religious exemptions, and CEA and Choices appear to be in the same boat, recognizing the sexual binary and conception as the start of life.

They face a "no-win choice" among adopting costly and religiously offensive policies, risking liability for their current policies and shutting down.

As a "pro-woman medical organization," the pregnancy center network cannot use gender identity to address employees, "give dress-code exemptions" or grant access to single-sex facilities, and it restricts male access to ultrasound rooms and bans them from "lactation spaces" entirely.

"Choices thus seeks to promote pro-life options like adoption without government censorship, to refrain from facilitating abortion, and to hire consistent with its pro-life beliefs," the brief says.

CEA claimed associational legal standing as a plaintiff by way of its members, including Texas-based Predictive Fitness and Missouri-based Moms for America, whose objections to the EEOC mandates mirror those of Choices.

Its separate ongoing litigation against both mandates challenges "EEOC’s operating belief – shared by Samuels" – that a president can't remove commissioners. She is either wrong on that point, or if she's right, "that independent status violates Article II, which vests all the executive power in the President," the filing says.