EEOC Nixes Bathroom Ruling for Transgender Federal Workers (3)

The EEOC overturned part of a landmark Obama-era decision that had asserted denying transgender federal workers access to bathrooms that match their gender identity is a form of sex discrimination and harassment.

The Republican-controlled Equal Employment Opportunity Commission voted 2-1 Thursday to approve a new federal-sector appellate decision holding that Title VII of the 1964 Civil Rights Act allows government agencies to exclude workers including “trans-identifying employees” from “opposite-sex facilities” like bathrooms and other intimate spaces.

The new ruling undoes much of Lusardi v. Department of the Army, a 2015 commission decision that found the Army discriminated against a transgender worker by not allowing her to use the women’s bathroom and misusing male pronouns.

Lusardi was an early legal precursor to the US Supreme Court’s 2020 groundbreaking ruling in Bostock v. Clayton County, in which the justices held that Title VII protects lesbian, gay, bisexual, and transgender workers from discrimination.

The civil rights agency’s latest move doubles down on its shift away from transgender bias enforcement under Chair Andrea Lucas.

“Today’s opinion is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally,” Lucas said in a statement. “When it comes to bathrooms, male and female employees are not similarly situated.”

Kalpana Kotagal, the commission’s sole Democrat, called the new ruling “legally suspect.”

“The decision rests on the false premise that transgender workers are not worthy of the agency’s protection from discrimination and harassment and that protecting them threatens the rights of other workers,” she said in a statement. “Worse, it suggests that transgender people do not exist.”

Since last year, the EEOC has dropped multiple discrimination lawsuits it brought on behalf of transgender employees during Joe Biden’s presidency, and limited the processing of chargesfiled by those workers. The agency also recently rescinded anti-harassment guidance which stated that misgendering workers and restricting bathroom use can be discriminatory.

Those agency changes followed an executive order from President Donald Trump that directed the federal government to recognize only two sexes.

‘Concerningly Threadbare’

In the new ruling, the EEOC said the Army denied a civil IT specialist’s request to use the women’s bathrooms after the worker told local management she identified as a woman.

Affirming that decision, the commission said Bostock didn’t address bathroom use.

Rather, the Supreme Court’s ruling held that Title VII covered employers’ decisions to fire or refuse to hire transgender workers, it said.

Lusardi’s reasoning on bathrooms is “concerningly threadbare,” Thursday’s decision said.

Single-sex bathrooms are permissible “only because the sexes are not similarly situated in this specific context,” the ruling said.

It added that it doesn’t “open the door to segregated bathrooms based on other protected characteristics, including race.”

The new ruling appears to be squarely focused on bathrooms, locker rooms, and changing areas, and doesn’t address pronouns or misgendering workers.

Congressional Equality Caucus Chair Rep. Mark Takano (D-Calf.) said in a statement Thursday that the EEOC cannot undo transgender discrimination protections the Supreme Court affirmed in Bostock.

“Authorizing vigilante bathroom police doesn’t just endanger transgender people—it puts every girl and woman at risk, especially those who don’t fit Republican extremists’ idea of what women ‘should’ look like or act,” Takano said.