On May 15, 2025, the district court for the Northern District of Texas issued an order vacating the gender-identity portions of the EEOC’s 2024 Enforcement Guidance. In the order, District Judge Matthew J. Kacsmaryk stated that all language defining “sex” under Title VII to include “sexual orientation” and/or “gender identity” was contrary to law and therefore vacated.
Bostock v. Clayton County, Georgia (2020)
So, where does the law stand in regards to how “sex” is defined under Title VII and whether it includes gender-identity or sexual orientation? The Supreme Court previously addressed the issue, though in a limited capacity. In Bostock, Justice Gorsuch (joined by Justices Roberts, Ginsburg, Bryer, Sotomayor, and Kagan) established that an employer who terminates an individual based on that individual being gay or transgender violates the law; and this remains the law of the land. The Supreme Court’s reasoning in Bostock can be summarized as follows:
- Title VII prohibits employers from taking certain actions on account of, or because of, sex. In other words, Title VII utilizes a “but-for” causation standard.
- Events can have multiple “but-for” causes. Thus, if an employer terminates an individual based in part on sex then the employer has violated Title VII.
- An employer cannot discriminate based on homosexuality or transgender status without, at least in part, discriminating on the basis of sex. Justice Gorsuch provides the following example to illustrate his point: “[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”
- Therefore, because sex must play a role in the decision, discharge based on sexual orientation or gender-identity is prohibited under Title VII.
Justice Gorsuch made clear that the ruling in Bostock was limited to this specific question, whether an employer who fires someone because of their sexual orientation or gender-identity is in violation of Title VII for discriminating against the individual based on sex. While answering that question in the affirmative, he explicitly stated that: “we do not purport to address bathrooms, locker rooms, or anything else of the kind,” and “[w]hether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases.”
The 2024 Enforcement Guidance
In the spring of 2024, the U.S. Equal Employment Opportunity Commission (the “EEOC”), in a 3-2 vote, released new enforcement guidance on harassment in the workplace, which was supposed to: (1) communicate the EEOC’s position on important legal issues; and (2) serve as a resource for employers, employees, practitioners, EEOC staff, and other agency staff. Moreover, the guidance acknowledged the authority did not carry “the force and effect of law.”
Relevant here, the EEOC stated that under Title VII, “sex” includes sexual orientation and gender identity. Additionally, the EEOC stated sex-based discrimination under Title VII included harassment based on sexual orientation and/or gender identity. The EEOC provided examples of scenarios it would consider harassment based on sexual orientation or gender identity, including but not limited to misgendering, denial of access to a bathroom based on the individual’s gender identity, or instructing a transgender woman they could not wear dresses and skirts.
Fast forward to 2025, President Trump takes office and almost immediately issues Executive Order 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, in which he instructs the EEOC to rescind the 2024 enforcement guidance. The Trump administration was met with resistance, after which President Trump removed two of the three commissioners appointed by the prior administration. Now there are only two commissioners, and without a quorum, the EEOC remains unable to formally rescind the 2024 enforcement guidance.
The District Court Order
The State of Texas and the Heritage Foundation filed a lawsuit in the Northern District of Texas challenging the 2024 enforcement guidance on multiple grounds. Their first claim that the policy set out in the 2024 enforcement guidance is contrary to law was granted by the court.
The court stated that the 2024 enforcement guidance contravened the plain text of Title VII by expanding the definition of “sex” to include sexual orientation and gender identity when neither is mentioned in the statutory language. Moreover, the court noted that in Bostock the Supreme Court had explicitly declined to provide a new definition of “sex” under Title VII, citing to specific language stating, “homosexuality and transgender status are distinct concepts from sex.”
Similarly, the court concluded that the 2024 enforcement guidance’s inclusion of examples of harassment, including misgendering, transgender bathroom accommodations, and dress preferences, were without any basis under Title VII. The court stated that failure to provide such accommodations does not expose one sex to disadvantageous terms or conditions of employment the other sex is not exposed to. Moreover, the court pointed to the language noted above in Bostock, in which the Supreme Court explicitly stated it did not “purport to address bathrooms, locker rooms, or anything else of the kind.”
Put simply, the court viewed the 2024 enforcement guidance as it pertained to gender-identity as unsupported by the plain language of Title VII; and the court found Bostock to be inapplicable outside of the termination of an employee based on sexual orientation or gender-identity. As a result, the court concluded that the 2024 enforcement guidance contravened Title VII by (1) expanding the definition of sex; and (2) “requiring employers to accommodate an employee’s dress, bathroom, or pronoun requests.”
Therefore, the court vacated the gender-identity related portions of the 2024 enforcement guidance. Moreover, the court elected to vacate the 2024 enforcement guidance for not only the parties, but universally.
Conclusions
- Following the district court’s order in Texas v. EEOC, the 2024 enforcement guidance has been vacated nationwide.
- The district court’s order is unlikely to be appealed based on the Trump administration’s current positions regarding DEI and gender-identity.
- The 2024 enforcement guidance cannot be formally rescinded at this time because the EEOC lacks a quorum, but the website currently flags the district court’s order and shades the “unlawful portions” which have been vacated.
- Bostock remains the law of the land. Thus, it remains unlawful to terminate an employee based on the employee’s gender-identity or sexual orientation. The Supreme Court has not weighed in on whether misgendering, the denial of bathroom or locker room requests, or the denial of dress requests would constitute sex discrimination under Title VII.
- Unless and until addressed by Congress or the U.S. Supreme Court, employers must be mindful of potential sex discrimination claims under Title VII based on gender-identity in a multitude of potential scenarios. Circuit Court precedent could very well differ based on your jurisdiction.
- Employers must also be aware of specific state and/or local laws regarding discrimination based on sex and how specific jurisdictions have chosen to define sex.
When faced with any type of discrimination claim or threat, employers should consult counsel to ensure compliance with the applicable laws.
