Gender Identity Portions of EEOC Harassment Guidance Vacated

Portions of a 2024 Equal Employment Opportunity Commission (EEOC) guidance document on harassment that dealt with gender identity issues have been vacated by a federal district judge.

The guidance document, issued in May 2024, represented the first major update to the EEOC’s approach to workplace harassment in nearly 25 years. Many of its updates were relatively uncontroversial, but sections that discussed gender identity issues, such as pronoun use and restroom access, proved more divisive.

In the district court ruling, Judge Matthew Kacsmaryk reasoned that “Title VII remains rooted in a biological understanding of sex.” The gender identity portions of the 2024 guidance, the court concluded, contradict that understanding “by expanding the definition of ‘sex’ beyond the biological binary and requiring employers to accommodate an employee’s dress, bathroom, or pronoun requests.”

As a result of the ruling, all language in the guidance defining sex in Title VII to include sexual orientation and gender identity is vacated, along with:

• A section outlining harassment based on sexual orientation and gender identity;
  
• An example of repeated and intentional misgendering as a form of harassment; and
  
• All language defining sexual orientation and gender identity as a protected class.

Guidance documents do not create new law or legal obligations, but they do offer insight into an agency’s current priorities and interpretation of the laws they enforce.

It is unlikely that the EEOC will appeal the ruling. On January 20, President Trump signed an Executive Order (EO) stating the administration’s policy of recognizing only two sexes, male and female, and directing federal agencies to apply strictly biological definitions of sex, male, female and related terminology.

Acting EEOC Chair Andrea Lucas opposed the gender identity portions of the guidance when it was issued. Under her tenure, the EEOC has taken steps to remove gender identity-related content from the agency’s internal and public-facing materials and has moved to dismiss several pending gender identity discrimination cases.

Employment discrimination based on sexual orientation or transgender status remains illegal under federal law, as the Supreme Court held in the 2020 case Bostock v. Clayton Country. In addition, many state and local antidiscrimination laws offer specific protections against discrimination on the basis of sexual orientation, gender identity and gender expression.