Federal Court Vacates EEOC Harassment Guidance Regarding LGBTQ Individuals

On May 15, 2025, the U.S. District Court for the Northern District of Texas vacated portions of the Equal Employment Opportunity Commission (EEOC)’s Enforcement Guidance on Harassment in the Workplace relating to LGBTQ employees; the remainder of the guidance remains in effect. The court’s ruling applies on a nationwide basis. In response to the decision, EEOC has on its website indicated those portions of the guidance that the court struck down.  

Background 

In 2021, the then-chair of the EEOC issued “technical assistance” setting forth the EEOC’s position on discrimination based on sexual orientation and gender identity. That guidance was struck down by the district court for a number of reasons both substantive and procedural (among them was the court’s determination that the then-chair exceeded her authority by unilaterally issuing what it saw as new positions by way of a technical assistance document not subject to approval by the full Commission). At the time, the EEOC indicated that it was issuing this assistance to align the agency’s view with the Supreme Court’s decision in Bostock v. Clayton County, in which the High Court held that Title VII’s prohibition on sex discrimination extends to prohibit discrimination on the basis of sexual orientation and gender identity. 

Two years later, the Commission voted to approve an update to its Enforcement Guidance, which it adopted on a 3-2 vote. The substance of the guidance largely tracks that of the vacated technical assistance, expressing its position that sexual harassment includes harassment based on sexual orientation and gender identity, including, for example the “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity” and “denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” At the time, then-Commissioner Andrea Lucas voted against the guidance and issued a dissenting statement in which she indicated she disagreed with the Commission’s position on these matters. 

In January 2025, the president designated Commissioner Lucas to be acting chair of the agency. In her first statement she identified a number of her priorities as chair, including “defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work.” This followed on the heels of the president’s executive order regarding sexual orientation and gender expression discrimination.  

Acting Chair Lucas subsequently issued a statement outlining her views on gender identity in the workplace and listing a series of actions she had taken to “return” the agency “to its mission protecting women from sex-based discrimination in the workplace by rolling back the Biden administration’s gender identity agenda.”  She further indicated that there were certain documents relating to gender identity that she could not unilaterally remove or modify, including the subject Enforcement Guidance, because doing so would require a majority vote of the full Commission; she suggested that once the Commission regains its quorum she may move to rescind portions of the guidance or modify those section with which she disagrees.  

Challenge to the Guidance 

The State of Texas and the Heritage Foundation sued to enjoin the enforcement guidance in the same court that previously had struck down the technical assistance, arguing that the EEOC’s guidance was contrary to law, arbitrary and capricious, and in excess of the EEOC’s statutory rulemaking authority. 

In a 34-page opinion, the court agreed with the plaintiffs. Specifically, it concluded that the EEOC’s positions were contrary to law insofar as they, in the court’s words, “expand[] the scope of sex beyond the biological binary” and “contravene Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.” The court held that in its guidance, the EEOC improperly misinterpreted Bostock, “by redefining the core definition of ‘sex.’” In its view, the only question decided in Bostock was whether “fir[ing] someone simply for being a homosexual or transgender” violates Title VII. In light of these facts, the court ordered that those sections of the guidance relating to sexual orientation and gender identity be vacated. As noted above, the agency immediately acted to indicate on its website precisely which provisions of the guidance were voided. 

Going Forward 

While the invalidation of these portions does not technically mean that the EEOC cannot file litigation alleging discrimination on the basis of sex or gender identity, it seems highly unlikely that the agency will do so any time in the near future. Indeed, the EEOC has previously indicated that all such charges will be sent to headquarters for review, and the agency has withdrawn a number of cases alleging discrimination on the basis of gender identity.

That notwithstanding, employers should still proceed with caution where these issues arise.  First, unless and until reversed, the Bostock decision remains the law of the land, and Title VII protects against discrimination on the basis of sexual orientation and gender identity, although the full scope of those protections is not yet entirely clear. When it decided Bostock, the Supreme Court expressly noted that it was not “addressing bathrooms, locker rooms, or anything else of the kind” (including, presumably, pronoun usage) and that those were “questions for future cases.” Second, a number of state and local laws and ordinances expressly prohibit discrimination on the basis of sexual orientation and gender identity. Third, in the wake of Bostock, courts have come to differing conclusions as to the scope of the case’s application and protections. Finally, even if the EEOC does not pursue a claim of discrimination or makes a no-cause determination, a private plaintiff is able to request a right-to-sue letter and institute a civil lawsuit on their own behalf. 

Given the complex and changing legal landscape surrounding these issues, employers with questions about addressing such matters are advised to consult with counsel. In the interim, WPI will keep readers apprised of significant developments.