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Federal Judge Topples EEOC’s LGBT Bathroom, Pronoun Guidance (1)

Oct. 3, 2022, 1:43 PMUpdated: Oct. 3, 2022, 8:55 PM

A federal judge in Texas ruled that the US Equal Employment Opportunity Commission’s guidance allowing exceptions for LGBT employees from workplace policies on bathrooms, dress codes, and locker rooms was unlawful.

The EEOC’s June 2021 guidance improperly interpreted the US Supreme Court landmark 2020 ruling that federal anti-bias law prohibits job discrimination based on sexual orientation and gender identity, according to an Oct. 1 ruling from Judge Matthew Kacsmaryk, a Donald Trump appointee on the US District Court for the Northern District of Texas. Texas sued the agency to challenge the guidance.

The decision handed the EEOC a loss in its broader courtroom battle over the scope of the high court’s Bostock v. Clayton County decision extending protections in Title VII of the 1964 Civil Rights Act to LGBT workers. According to Kacsmaryk, the high court merely established that an employer can’t discriminate against a worker for their sexuality or gender identity but doesn’t protect an employee’s “correlated conduct.”

The agency also is defending its post-Bostock guidance against a lawsuit from a coalition of Republican-led states. A Trump-appointed judge in Tennessee in July temporarily blocked the guidance from being enforced in the states suing the agency.

A guidance document establishes an agency’s interpretation of a particular ruling or law. Both courts here have said the EEOC jumped the gun in its guidance by interpreting Bostock to protect LGBT employees’ correlated conduct, such as using pronouns and facilities that don’t correspond with their gender assigned at birth.

But the rulings didn’t decide whether that conduct is or isn’t protected in general— it simply ruled that Bostock didn’t decide that.

“Employers shouldn’t stop what they’re doing in response to this ruling,” said Francis Boustany, a legal analyst at Bloomberg Law. “There’s a lot more to be litigated here. This ruling does not make policy in one way or the other; those are still areas to be litigated and this does not yet change that.”

The Department of Justice, which is litigating the case on behalf of the EEOC, and the Texas Attorney General’s Office didn’t immediately respond to emailed requests for comment.

A Texas federal judge appointed by George W. Bush issued a ruling last fall that cleared a path for for-profit businesses to shield themselves from LGBT discrimination claims by using religious-based exceptions to Title VII.

The case is State of Texas v. EEOC, N.D. Tex., No. 21-00194, ruling 10/1/22.

(Updated with additional reporting throughout. )

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloombergindustry.com