EEOC Gender Identity Protections Take Another Hit

A federal district court judge in Texas struck parts of Biden-era EEOC guidance that sought to provide legal protection against discrimination and harassment on the basis of gender identity.

Why it matters: The decision is another blow to efforts to extend federal anti-discrimination legal protection to gender identity and removes a legal backstop for employers with workplace policies on gender identity issues. Acting EEOC Chair Lucas has already announced her intention to pull the Trump EEOC away from gender identity discrimination enforcement.

Background: The 2020 Supreme Court decision in Bostock v. Clayton County affirmed that Title VII prohibits harassment and discrimination on the basis of sexual orientation and gender identity. Following that decision, the EEOC, under President Biden, issued non-binding guidance that outlined specific protections from harassment and discrimination on the basis of gender identity and sexual orientation.

• The guidance was the subject of multiple lawsuits by conservative groups who alleged that it misread the Bostock decision and provided legal protections beyond the scope of EEOC authority.

The decision: Judge Matthew J. Kacskmaryk – a consistent go-to for blocking Biden-era policies – ruled that the EEOC exceeded its authority and took an overly expansive view of the Bostock decision in its guidance.

• Specifically, the ruling invalidates portions of the guidance that suggest it may be discriminatory or harassing under Title VII to refuse to use preferred pronouns, deny bathroom access based on gender identity, or enforce dress codes aligned with biological sex.

The bottom line: The ruling, in conjunction with the EEOC’s withdrawal from gender identity discrimination enforcement, deals a significant blow to Title VII protections on the basis of gender identity.

• The Administration has made it abundantly clear that it does not believe in such protections. In fact, it is more likely to attempt to prevent employers from enforcing anti-discrimination or harassment policies on the basis of gender identity.

• Judges hearing different cases may still interpret Bostock as extending Title VII protections to gender identity. Eventually, the Supreme Court may definitively decide the issue.