For over a year, employees of the Texas Department of Agriculture (TDA) have been subject to a dress code that is transphobic and potentially illegal. The policy has caused turmoil within the agency, emails obtained by the Texas Observer and interviews reveal, along with contributing to a chilling atmosphere for LGBTQ+ workers.
Last April, the Observer broke the news that the TDA had implemented a new dress code which required employees to dress “in a manner consistent with their biological gender”—an apparent attempt to restrict how transgender and nonbinary employees express themselves. Sid Miller, the Texas Agriculture Commissioner, defended the policy in media appearances and on social media. Since then, the nonprofit American Oversight obtained a cache of emails pertaining to the policy through a public information request and provided those emails to the Observer. The emails show that senior agency staff were aware TDA was wading into legally dubious waters and that a number of employees objected to its implementation and felt personally discriminated against.
Austin Kaplan, an employment attorney in Austin, told the Observer he was “surprised” that no one has yet sued TDA over the policy. “It certainly seems like an issue that could be ripe for litigation because it’s right on its face discriminating against people for sexual orientation or transgender status.”
In a landmark 2020 Supreme Court decision, Bostock v. Clayton County, justices ruled that Title VII of the Civil Rights Act of 1964 protects employees against discrimination for their gender or sexual identity. In the emails, the question of whether that ruling applies to the proposed dress code is discussed by senior staff at the TDA.
“I do not feel the same level of safety that I did in previous state jobs.”
On April 18, 2023, TDA Policy Analyst Carter Page, shared a chart comparing interpretations of the law under the Obama and Trump administrations, commenting: “This table below offers a very good summary, regarding how volatile these controversial related policy / legal questions have remained over the last decade or so.” This email was to multiple recipients including TDA General Counsel Tim Kleinschmidt and Terry Keel, Assistant Commissioner of Agriculture for Enforcement, Consumer Protection, and Border Security. On April 24, 2023, Page shared news of Ken Paxton supporting a lawsuit over transgender athletes led by Tennessee, including Paxton’s legal arguments about both Title VII and Title IX of the Civil Rights Act. The email was sent to Miller and other top TDA officials.
“The records that we have received demonstrate that senior TDA officials were well aware of the potentially unlawful nature of their policy,” said Chioma Chukwu, interim executive director at American Oversight, a nonprofit that aims to use public records law to combat corruption. “[TDA officials] were taking precautions to try and defend something that is otherwise indefensible in light of Title VII.”
According to Kaplan, “It was made abundantly clear by the Supreme Court that LGBTQ+ rights are protected by federal statute and employers are not permitted to discriminate. The conservative politicians might not like it, the conservative elected agency heads might not like it, but they don’t really have a choice.”
Though the Supreme Court hasn’t ruled specifically on dress codes for transgender employees, Kaplan noted that courts have begun to make important rulings based on Bostock. For example, in March, the Eleventh Circuit Court of Appeals ruled in favor of a transgender male prison guard who sued after being repeatedly harassed over his gender identity by coworkers.
TDA did not respond to multiple requests for comment about its dress code or other topics revealed in the emails.
The emails also show that some employees revolted against the policy. On April 30, 2023, Lena Wilson, assistant commissioner for food and nutrition, gave her employees a warning. “Please remember that political discussions need to occur outside the office,” she wrote. “I can’t stress enough how important it is for you to voice your concerns with your leadership chain or HR.”
About two weeks later, an employee whose name was redacted wrote that “The email on 4/30/2023 made me unsure about how to express my concern about the new dress code policy since discussing political or sensitive subjects appeared to be discouraged. … The audacity and impact of this policy has garnered national attention, damaging the reputation of the agency and our division,” the employee continued. “How can we as a division mandate that our program participants comply with civil rights policy when our own leadership does not?”
Another employee with a redacted name wrote: “Within the past six months, several trans, queer, and/or gender-nonconforming staff have been hired by the TDA. This timing could lead one to conclude that this policy is a direct result of trans visibility in the workplace. By implementing discriminatory policies, TDA forces compliance with behaviors that contradict our identities, or makes the workplace uncomfortable enough that we are forced to leave.”
This May, the Observer spoke with a current employee in TDA’s food and nutrition division, who confirmed that the dress code remains in place. “I was disgusted while reading through all of the agency operating procedures during my first few days of work,” said the employee, who is queer and requested anonymity to avoid retaliation from TDA.
Previously, the employee worked elsewhere in state government. “Although I am open about my queerness, I do not feel the same level of safety that I did in previous state jobs.”
Natalie Rougeux, an employment lawyer in New Braunfels who represents employers and has provided employment law training for TDA, told the Observer she’d strongly advise her clients against adopting similar policies to the TDA dress code. “Let’s just say, hypothetically, an employee is terminated from employment, and they feel that it’s due to their transgender status. That policy could certainly be used as circumstantial evidence of an animus toward individuals who are transgender.”
Rougeux noted that the Supreme Court, in its Bostock decision on gender identity, had not ruled on issues like attire, which it deliberately left for future cases. “I don’t want one of my clients to be that future case.”
An email from Rougeux was included in the documents provided by American Oversight. In it, Rougeux responded to an apparent complaint (not included in the records) from a TDA human resources employee about a training Rougeux had provided. “I removed the issue of bathroom choice and attire from my training in light of the Texas and Tennessee cases and your commissioner’s stance on the issue, but I feel that deliberately deadnaming an individual could still be harassment. … My apologies if I did anything upsetting. However, I do stand by my training,” Rougeux wrote in the June 12, 2023, message.
“Deadnaming” means calling a transgender person by a former or incorrect name. In the email, Rougeux referenced 2022 court rulings in Texas and Tennessee that struck down federal Equal Employment Opportunity Commission guidelines on sexual orientation and gender identity. The EEOC has since issued revised guidelines, which Texas and other states are once again challenging. But, the bottom line, according to Rougeux, is that nothing prevents “employees from filing claims if they felt they were being mistreated in the workplace due to their gender identity or sexual orientation.”
Kaplan agreed with Rougeux. “If you’re deadnaming someone, you may well be harassing them on the basis of their sexual orientation.”
TDA’s dress code has drawn continued fire from advocates. Sarah Kate Ellis, president of the national pro-LGBTQ+ group GLAAD, condemned the policy in a written statement to the Observer. “LGBTQ people farm, work and live in Texas,” she wrote. “Commissioner Miller works for them too. All Texans deserve a public servant who serves all in public, and at minimum doesn’t waste time and money targeting people for who they are or how they dress.”
Miller has continued to publicly defend the dress code on social media as recently as April. In response to the Observer reposting its original story about the TDA policy on X, Miller responded: “Men are men. Women are women, and the @TexasObserver is a clown show.”
According to Chukwu, this kind of public behavior along with the emails themselves show Miller’s priorities are out of alignment with his job.
“The commissioner, who was one of the policy’s architects, was more concerned with appeasing the anti-trans and anti-nonbinary sentiments of certain officials than with creating a comfortable and inclusive work environment for all employees.”
