The Alaska Human Rights Commission released updated guidelines last week on LGBTQ employment discrimination in Alaska that weaken guaranteed protections for transgender employees, after receiving earlier this year new legal analysis from the Department of Law.
The updated document, released Wednesday, comes two years after the commission began, on the advice of Attorney General Treg Taylor, limiting its protections for gay and transgender Alaskans to apply only in employment cases, rather than all categories of discrimination, including housing, government practices and finance.
The new guidelines, meant to give information to employers on what could constitute a hostile workplace environment, altered sections of a previously posted document that had explicitly banned certain actions targeting transgender people in the workplace. The updated version now calls the legality of such actions, including repeatedly using incorrect pronouns for transgender employees and disallowing the use of bathrooms that match transgender employees’ gender identity, “open questions” under Alaska law.
The commission issued its original guidelines in 2021 in the wake of the Bostock v. Clayton County U.S. Supreme Court decision that enshrined workplace protections for LGBTQ people.
In that decision, the court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
[Earlier coverage: Alaska drops policy banning discrimination against LGBTQ individuals]
Immediately after the Bostock decision, the Alaska commission said it would provide protections from discrimination to gay and transgender Alaskans in all areas of the law. The commission director, Robert Corbisier, made that decision based on advice from the Department of Law at the time.
But Corbisier said that Taylor, who was appointed to lead the Department of Law in January 2021, later directed the commission to limit protections only to employment-related claims, as the Anchorage Daily News and ProPublica first reported earlier this year.
Now, it appears that instructions from the Department of Law, led by Taylor, have again led the commission to narrow its interpretation of the protections promised to transgender Alaskans in the workplace.
The document posted on the commission website in 2021 states that “employers may not deny an employee equal access to bathroom, locker room, or shower that corresponds to the employee’s gender identity.”
The new document posted last week states that “whether an employer may deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity is an open question of law in Alaska because there is no statute or controlling judicial opinion that applies in this state.”
The 2021 document also states that “in certain circumstances” use of “pronouns or names that are inconsistent with an individual’s gender identity” constitutes workplace harassment. The new document states that “whether using pronouns and/or names that are inconsistent with an individual’s gender identity is considered workplace harassment in Alaska is an open question of law.”
In both cases related to pronoun use and bathroom use, the new guidelines state that the commission would still investigate potential workplace harassment, but removes the unequivocal language that has existed on its website until recently on the illegality of such actions by employers.
Asked why the guidelines on the treatment of transgender employees in the workplace had changed, Corbisier, the commission director, pointed to state law, which states that “the commission shall submit proposed publications to the Department of Law for a review of legal accuracy.”
Asked if he thought the change would weaken protections for transgender employees, Corbisier took a long pause, before saying that “the agency’s jurisdiction needs to be supported by statute and case law” and “the agency shouldn’t be taking positions that the Department of Law doesn’t feel can be defended.”
Department of Law spokeswoman Patty Sullivan said in an email that “the Attorney General does not get to provide advice based on what the law could or should be, but rather his duty is to provide advice based on what the law is. It would not be fair to an employer or an employee to make legal conclusions in the guidance document on issues that are still undecided by a controlling court or by the legislature.”
The Bostock ruling, Sullivan said, “did not cover what would constitute sex discrimination under the hypothetical factual scenarios described in the guidance document,” nor have the Alaska Supreme Court or federal courts.
“However, ASCHR has made a policy decision to accept all complaints of employment discrimination and the Commission in its adjudicatory capacity will make its determinations as to whether discrimination occurred,” Sullivan said.
“The guidance document simply puts employers and employees on notice of the fact that the law is still uncertain in Alaska under those specific scenarios. This allows employees and employers to make rational decisions based upon those uncertainties,” Sullivan said.
The move is not the only action taken by the administration of Gov. Mike Dunleavy to limit or weaken the rights and protections of transgender Alaskans. Earlier this year, the Dunleavy-appointed state board of education voted to ban transgender girls from playing on girls’ high school sports teams. Dunleavy also proposed earlier this year a bill that would have limited transgender students’ ability to use bathrooms according to their chosen gender, and would have required schools to share information with parents when students use pronouns other than those that match their gender assigned at birth. The bill stalled in the Legislature.
In an August meeting, the commission adopted a motion instructing Corbisier to “craft a policy based on existing federal case law that the commission will accept and consider evidence of sex-based discrimination that includes pronoun use for transgender employees and bathroom and locker room use for transgender employees.”
The motion passed after Corbisier told commissioners he needed additional guidance from them on which cases to accept.
“I would take an LGBTQ case for employment — I would take it based on pronoun use, I would take it based on transgender bathroom use, based on my reading of Bostock v. Clayton County,” said Corbisier, referring to the U.S. Supreme Court case. “But that’s also where I don’t want to get sideways with you guys at the commission, who ultimately set the policy for the agency and are my direct boss.”
State statute defines the commission’s duties as the elimination of discrimination based on multiple categories, including sex. There is no definition in state law of what falls under the category of sex discrimination.
The commission operates by investigating claims of discrimination and deciding whether discrimination took place, but it only conducts investigations when the claims meet certain criteria set by the commission.
Corbisier cited two cases that have come before the commission relating the workplace rights of transgender people. In one case, a transgender employee asked their employer to use their new pronouns, and the employer refused to do so. In another case, a transgender employee wanted to use a different locker room based on their preferred gender, and was denied that option.
“That would be a case that we would probably find substantial evidence of sex-based discrimination under Bostock v. Clayton County,” said Corbisier.
According to a report on the case involving pronoun use, an individual filed a complaint on behalf of their non-binary minor child, alleging that the minor was hired at a workplace, but their manager refused to refer to the minor by their chosen name and pronouns, and told the minor “they were unwelcome,” leading the minor to resign. The complaint led to a settlement agreement, in which the employer agreed to pay the complainant $500, provide an apology letter, adopt a workplace non-discrimination policy, and provide non-discrimination training to all employees. As of May 2023, only management staff had received the training, according to the commission report.
Commission Chair Zackary Gottshall said in August that despite the federal case law indicating that transgender people’s rights should be protected, “Ultimately, in order for Rob (Corbisier) to receive proper guidance, we have to make a motion and vote on it, on how to handle these particular individuals.”
“Things are going to come to a head, at some point. I’m sure that’s why we’re tiptoeing around certain things,” said Gottshall.
Gottshall said commissioners could in the future draft new regulations that would create a new definition of sex in state statute for the purpose of defining the kinds of discrimination that are prohibited under the definition of sex. That could allow the commission to systematically refuse to investigate cases related to particular types of violations. If the commission moves forward with a new regulation, it would go to public comment before being adopted.
At least one commissioner had reservations about allowing the commission to accept and investigate cases related to the rights of transgender people.
“Some of my mixed emotions about this is that, a reasonable-person standard — it seems like it’s changing to me, because a reasonable person, as I have always known it, now is kind of muddied by people saying that, if you don’t agree with me, then your words are violence. I don’t want to see that kind of shift happen,” said commissioner Mae Marsh, who — like all other commissioners — was appointed by Gov. Mike Dunleavy.
“With gender incongruence, it’s like it’s a rush to say, modify your bathrooms to accommodate this. So, I’m confused about bathrooms. I’m confused about why pronouns are any more of a deal then what other derogatory comments are,” said Marsh.
The August meeting was the culmination of months of work by Corbisier to adapt the commission’s LGBTQ guidelines in response to legal interpretation by the Department of Law.
In response to a request from the Anchorage Daily News submitted on Aug. 31 for two months of correspondence between the commission and the attorney general’s office related to the LGBTQ discrimination policy, the state provided more than 30 pages of redacted emails, citing attorney-client privilege as the basis for the redaction.
The series of emails includes several between attorneys at the Department of Law and Corbisier under the subject line “Updated LGBTQ+ employment guidance document.” The contents of the emails are fully redacted.
In a June 20 email, Corbisier wrote an update on the work of the commission including a bullet point headlined “LGBTQ+ guidance document update.” The majority of the paragraph-long section is redacted, except for two sentences: “Keep in mind this guidance is limited to employment matters only” and “I was hoping to have the document available sometime this month.”
In a July 24 letter from Gottshall to the attorney general on the subject of “Updated LGBTQ+ Guidance Document,” Gottshall wrote to Taylor that he had “reviewed responses from your office regarding the Commission’s recent inquiry for legal guidance.” The rest of the paragraph in the letter shared with the Daily News is redacted.
“As Chairman, I intend on placing this matter on the agenda for the commission’s next meeting to take a substantive policy position,” Gottshall wrote in July. “As this may require rule making, we would appreciate your candid legal advice to ensure that whatever policy position and/or regulatory position the commission takes can be best defended by yourself as our legal counsel.”
Taylor responded to Gottshall in a letter. Its contents were redacted by the Department of Law.
The Daily News filed an appeal on Sept. 22 of the redaction of a letter from Gottshall to the Department of Law sent in July, based on the fact that the letter itself had not been labeled confidential.
On Sept. 26, Corbisier wrote in a letter to the Daily News that Gottshall was calling for a special commission meeting “to discuss potentially waiving the privilege asserted” in the original records request. During their Oct. 3 meeting, the commission discussed a possible attorney-client privilege “waiver” during two hours in executive session, then unanimously adopted a motion “to resubmit the documents with surgical redaction.”
“What that means is that anything that had previously been redacted that is not strictly attorney client privilege would be revealed, but we would not be giving up our attorney client privilege,” said Marsh.
The newly unredacted documents have not yet been shared with the Daily News.
Daily News reporter Kyle Hopkins contributed to this report.