A federal judge in Texas issued a decision on May 15, 2025, striking down portions of the EEOC’s Enforcement Guidance on protections against employment discrimination based on gender identity and/or sexual orientation. District Judge Matthew J. Kacsmaryk, who has served as a judge in the U.S. District Court for the Northern District of Texas since appointed by President Trump in 2019, found that the EEOC had exceeded its statutory authority in issuing the guidance and granted summary judgment in favor of the plaintiffs, thereby vacating the guidance nationwide. The overturned EEOC guidance provided that:
- Transgender employees must be permitted access to bathrooms, locker rooms, and showers that correspond to their gender identity;
- Employers must allow transgender employees to dress or present consistent with their gender identity; and
- Intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to a hostile work environment.
Judge Kacsmaryk’s opinion may contravene the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, where the Court held 6–3 that Title VII’s prohibition on sex discrimination likewise prohibited employment discrimination based on gender identity and sexual orientation. In Bostock, Justice Gorsuch, writing for the majority, noted that if “an employer fires an employee for being homosexual or transgender, [the employer] necessarily and intentionally discriminates against that individual in part because of sex.” However, the Bostock Court explicitly declined to rule on issues related to “bathrooms, locker rooms, and dress codes” — all topics related to the EEOC guidance at issue in Judge Kacsmaryk’s decision.
The Texas court concluded that the EEOC’s Enforcement Guidance contravenes Title VII’s plain text by expanding the scope of “sex” beyond the biological binary — potentially setting up an ultimate appeal to the U.S. Supreme Court where Bostock may be revisited. The Supreme Court’s makeup has changed since Bostock was released in 2020 — Justices Ginsburg and Breyer have been succeeded by Justices Barrett and Jackson, respectively. Still, given the current administration and EEOC Acting Chair Andrea Lucas’ stance on LGBTQ+ rights, it appears unlikely that the EEOC will appeal Judge Kacsmaryk’s decision. Regardless, this federal court decision introduces yet more uncertainty into the protection that gender identity enjoyed as a characteristic under Bostock.
Outside of federal law, state and local laws across the country also prohibit discrimination based on various protected characteristics, including gender identity in some cases. Employers should assess all applicable laws — federal, state, and local — when developing policies and compliance strategies.
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