EEOC Reverses Course on Gender Identity/LGBTQ+ Workplace Protections
The Equal Employment Opportunity Commission (EEOC) voted to revoke prior federal guidance that treated the intentional misgendering of employees as a form of unlawful workplace harassment under Title VII of the Civil Rights Act of 1964. The decision marks a significant shift in federal enforcement policy concerning gender identity and LGBTQ+ discrimination and reflects broader changes underway.
The decision was expected. Last year, now-EEOC Chair Andrea Lucas signaled the EEOC’s plans to rescind or revoke such policies and regulations, in line with President Trump’s executive order directing the federal government to recognize only two biological sexes.
The commission’s action removes guidance issued during the previous administration that interpreted Title VII’s prohibition on sex discrimination to include protections for transgender employees. This includes rules addressing pronoun usage and access to bathrooms or facilities consistent with an individual’s gender identity. With the rescission, those interpretations will no longer guide federal enforcement efforts.
Narrowing of LGBTQ+ Enforcement Standards
The vote passed by a narrow 2-1 margin, with the commission’s Republican members approving the rollback and the Democratic commissioner dissenting. This policy change follows earlier judicial action. As reported by Phelps in May 2025, a federal judge in Texas invalidated portions of the EEOC’s anti-harassment guidance that addressed transgender-related workplace issues, including misgendering and access to gender-aligned facilities. The court’s decision weakened the enforceability of those provisions even before the commission’s formal rescission.
Conflicting Interpretations of Bostock
Central to the dispute is how broadly to interpret the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. In that ruling, the Court held that Title VII’s sex discrimination ban extends to discrimination based on sexual orientation and gender identity. The Biden administration adopted an expansive reading of Bostock, using it to justify robust workplace protections for transgender employees. However, back in 2024, then-Commissioner Lucas took the dissenting position that Bostock only applied to hiring and firing decisions, and not other conditions of employment. The current administration adopted this more constrained view as it applies to federal agencies. The EEOC’s latest action signals a reduced federal role in policing certain forms of alleged transgender-related workplace harassment.
Implications for Employers and Employees
The rescission does not change the text of Title VII itself, nor does it invalidate the Bostock decision. However, it does affect how aggressively the EEOC will pursue claims involving gender identity/LGBTQ+ issues. Employers may see greater regulatory discretion in managing workplace policies, while employees alleging transgender-based discrimination may face a steeper challenge at the federal enforcement level. As courts, agencies and administrations continue to interpret Bostock differently, the boundaries of workplace discrimination law remain in flux.
Please contact Mark Fijman or any member of the Phelps labor and employment team if you have questions or need advice or guidance.
