On May 15, 2025, the U.S. District Court for the Northern District of Texas issued an order vacating portions of the U.S. Equal Employment Opportunity Commission’s (EEOC) April 2024 Enforcement Guidance on Harassment in the Workplace related to LGBTQ+ protections. Before we get into the decision and its impact on your organization, let’s review the developments that got us here today.
Bostock v. Clayton County
In 2020, the U.S. Supreme Court issued its Bostock v. Clayton County decision ruling that Title VII’s prohibition on sex discrimination extends to discrimination based on sexual orientation or gender identity because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court held that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” For additional information on the Bostock decision, see HERE.
EEOC Issues Guidance on Sexual Orientation and Gender Identity
Following Bostock, in June 2021, the EEOC released a technical assistance document concerning sexual orientation and gender identity, which – among other things – stated that certain types of workplace conduct may constitute unlawful discrimination, including denying an employee equal access to a bathroom, locker room, or shower that corresponds with the employee’s gender identity; and intentionally and repeatedly using the wrong name and/or pronouns. In October 2022, the U.S. District Court for the Northern District of Texas vacated the document on a nationwide basis as unlawful.
Undeterred, in April 2024, the EEOC released its updated Enforcement Guidance on Harassment in the Workplace, in which the agency made clear that workers are broadly protected from discrimination on the basis of sex, including sexual orientation or gender identity, and gender expression. The guidance provided examples of unlawful harassment based on sexual orientation or gender identity, including the use of epithets, physical assaults, disclosure without permission of an individual’s sexual orientation or gender identity, and repeated and intentional misgendering of an individual. Most notably – and despite the vehement opposition of now-EEOC Acting Chair Andrea Lucas – the guidance also included as unlawful discrimination the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. For additional information on the guidance, see HERE.
State of Texas and The Heritage Foundation v. EEOC, et al.
As discussed further below, in August 2024, the State of Texas and conservative think tank The Heritage Foundation filed a complaint challenging the EEOC’s interpretation of Title VII and – among other things – portions of the guidance regarding pronoun usage, single-sex facility usage, and dress codes.
Executive Order 14168
On January 20, 2025, President Trump issued Executive Order 14168 (EO), Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which purports to defend women’s rights by ensuring federal agencies recognize only two sexes, female and male, and rejecting the concept of “gender ideology.” Among the directives, the EO ordered the Attorney General to “correct the misapplication” of the U.S. Supreme Court’s Bostock v. Clayton County decision, specifically, with respect to single-sex spaces; and ordered agencies to rescind guidance inconsistent with the EO, including portions of the EEOC’s Enforcement Guidance on Harassment in the Workplace. For additional information on the EO, see HERE.
Federal Court Vacates EEOC Guidance on LGBTQ+ Protections
On May 15, 2025, in State of Texas and The Heritage Foundation v. EEOC, et al., U.S. District Judge Matthew J. Kacsmaryk issued an order vacating portions of the EEOC’s guidance, holding that the EEOC “exceeded its statutory authority by issuing Enforcement Guidance requiring bathroom, dress, and pronoun accommodations” inconsistent with Title VII and recent Supreme Court precedent.
Bostock Decision Does Not Support Guidance on LGBTQ+ Protections
Upon reviewing the Bostock decision, the court noted that the case decided only whether firingan employee for being homosexual or transgender violated Title VII’s prohibition on “sex” discrimination under its but-for causation test, and that the Court expressly declined to answer whether the employer violated Title VII by declining accommodations for the transgender employee’s bathroom, pronoun, and dress preferences. Simply put, the court stated “the EEOC cannot ‘fill in the blanks’ for the Supreme Court.”
Enforcement Guidance Contravenes Title VII
The court also found that the guidance contravenes Title VII by:
- “[E]xpanding the scope of ‘sex’ beyond the biological binary: male and female[,]” thereby redefining “sex” under Title VII; and
- “[D]efining discriminatory ‘harassment’ to include bathroom, pronoun, and dress preferences[,]” thereby requiring employers to provide accommodations to all transgender employees.
Court’s Order
Accordingly, the court vacated the following portions of the guidance as contrary to law:
- All language defining sex in Title VII to include “sexual orientation” and “gender identity”;
- Portions outlining – and an example of – unlawful harassment based on sexual orientation and gender identity; and
- All language defining “sexual orientation” and “gender identity” as a protected class.
*Although the EEOC acknowledged it cannot rescind or modify the guidance at this time, the agency “labeled and shaded the vacated portions” of the updated guidance “to assist the public following the federal court decision.”
Balancing the Court’s Order, Bostock Decision, and State & Local Laws
As an initial matter, it is unclear whether the Texas court’s order vacating the EEOC’s guidance on sexual orientation and gender identity discrimination has nationwide impact. Nonetheless, Bostock remains good law but – as demonstrated by the Texas court’s decision – courts disagree as to whether the decision extends to single-sex facility usage, or pronoun and name usage. Filling in the alleged gap in Bostock, several states and localities have enacted laws that explicitly protect single-sex facility usage based on sex assigned at birth. Conversely, other state and local anti-discrimination laws protect access to bathrooms consistent with an employee’s gender identity.
For example, the following laws prohibit discrimination based on actual or perceived sexual orientation, gender identity, and/or gender expression; and require allowing individuals to use single-sex facilities consistent with their gender identity:
- CA: California Fair Employment and Housing Act;
- NJ: New Jersey Law Against Discrimination;
- NY: New York State Human Rights Law; and
- NYC: New York City Human Rights Law.
Employer Takeaways
Rising above competing and – at times – conflicting guidance can be challenging for employers. A helpful starting point is Title VII’s purpose, which the EEOC continues to define as “prohibit[ing] employment discrimination based on protected characteristics . . . . no matter which employees are harmed.” Pending further developments, employers should take the following steps:
- Review policies and practices to ensure compliance with all applicable federal, state, and local anti-discrimination laws;
- Train managers to identify and appropriately escalate workplace conflicts that implicate federal, state, and/or local anti-discrimination laws; and
Proactively evaluate potential workplace conflicts and identify solutions consistent with legal obligations as well as your organization’s core values.
If you have any questions related to the court’s order or need assistance reviewing your organization’s anti-discrimination and/or accommodation policies, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.
