Judge’s EEOC Rebuke Erodes Weakened Workplace Gender Protections

A Texas federal judge’s interpretation of a landmark US Supreme Court ruling in his decision to vacate EEOC guidance on transgender workers will compound conservative backlash to LGBTQ+ discrimination protections.

Judge Matthew J. Kacsmaryk of the US District Court for the Northern District of Texas ruled May 15 the Equal Employment Opportunity Commission overstepped its authority in issuing the 2024 guidance on workplace harassment. His ruling axed sections that instructed employers not to misgender employees or prevent them from using facilities aligned with their gender identity.

He said the agency used a “misreading” of the Supreme Court’s 2020 Bostock v. Clayton County decision, which bars discrimination based on sexual orientation and gender identity under Title VII of the 1964 Civil Rights Act.

But his finding that the EEOC “contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary: male and female” is a narrow interpretation of Bostock that may conflict with the majority’s reasoning in that ruling, several employment law scholars and attorneys said.

“Bostock specifically held that discrimination against someone for being transgender or gay is discrimination ‘because of sex,’” since such bias “necessarily involves treating someone differently based on sex,” said Amy Epstein Gluck, a partner at Pierson Ferdinand LLP.

“By insisting that ‘sex’ does not include gender identity or sexual orientation, the court disregards the core holding of Bostock,” she added.

Kacsmaryk’s ruling in the case brought by Texas and the conservative Heritage Foundation is the first summary judgment ruling in challenges to the guidance.

Independent of the courts, the Trump administration already chipped away at federal transgender protections, along with attacks on diversity, equity, and inclusion initiatives.

A Jan. 20 executive order directed federal agencies to recognize only two sexes. It demanded the EEOC rescind its harassment guidance and instructed the US Justice Department to “correct the misapplication” of Bostock and assist agencies in “protecting sex-based distinctions.”

Bostock’s Reach

Kacsmaryk said Bostock only contemplated if firing someone for being transgender or gay violated Title VII, and the court “expressly refused to extend its reasoning” to the scenarios outlined by the EEOC.

But Bostock’s reasoning relied on the language of Title VII, which states it’s unlawful to “refuse to hire or discharge any individual, or otherwise discriminate against any individual,” said Katie Eyer, an anti-discrimination law professor at Rutgers Law School.

Kacsmaryk “ignores the language of the statute” in an “unfair” and “stingy reading” of Bostock, Eyer added.

In the judge’s view, Bostock was limited to firing decisions. Yet, the EEOC’s guidance expanded “the scope of ‘sex’” and went “beyond the plain text of Title VII or binding Supreme Court precedent to create a new unauthorized definition,” he wrote.

James Kerwin, Mountain States Legal Foundation senior counsel, said Kacsmaryk’s may be a narrow reading, but Bostock is a “narrow decision.”

“Both are narrowly focused on the meaning of the words used in the Title VII statute. What did Congress mean when it chose to use the words, discriminate against an employer because of the individual sex?” said Kerwin, whose organization has challenged Biden-era Title IX regulations on gender identity.

The majority declined to address whether practices like sex-segregated bathrooms qualify as unlawful bias, saying these questions are reserved for “future cases.”

But it didn’t confine its reasoning to firings “because the logic of the decision was based on the principle that discrimination” on the basis of sex “includes any adverse employment action where sex” is a determining factor, Gluck said. Treating Bostock as only about termination ignores that underlying principle, she said.

Legal Landscape

There isn’t complete consensus in the courts on whether Title VII extends to the types of protections outlined by the EEOC, and cases have occasionally produced surprising results.

The conservative-leaning US Court of Appeals for the Eleventh Circuit, for instance, has endorsed the Biden EEOC’s view that near-constant misgendering and inappropriate remarks could contribute to a hostile work environment claim.

Federal courts are grappling with legal battles over misgendering and the use of pronouns in the workplace, particularly in the face of religious freedom claims.

“Ongoing lawsuits to protect Christian employers and the Texas court’s recent ruling have upheld that the Supreme Court’s previous rulings do not negate constitutional protections and do not impose radical gender ideology on workplaces,” Alliance Defending Freedom Senior Counsel and Director of Regulatory Practice Matt Bowman said in an emailed statement.

ADF is representing the Christian Employers Alliance in a North Dakota federal court case,challenging the EEOC guidance.

The Supreme Court’s unanimous 2024 decision in Muldrow v. City of St. Louis may also impact how courts view Bostock’s reach, said Nonnie Shivers, an Ogletree Deakins shareholder.

In Muldrow, the court found workers need only demonstrate they’ve experienced “some harm” that left them “worse off” regarding their employment when bringing a Title VII discrimination claim.

Muldrow’s expansion of employment-related decisions that could constitute adverse action under Title VII “opens the door wider” for discrimination claims beyond those on hiring and firing and could pave the way for more cases based on pronouns, bathrooms, and locker rooms, Shivers said.

Before Kacmaryk’s ruling, the EEOC under a new Republican acting chair dropped several transgender bias cases and signaled it would rescind the harassment guidance on its own.

Kacsmaryk’s decision, coupled with the EEOC’s reluctance to enforce the guidance under Trump, leaves workers on their own to bring gender identity claims without the civil rights agency’s resources or even the document to cite.

Though the guidance never had the legal force of a full-fledged regulation, the lack of enforcement pressure may lead some employers to ease off steps mitigating gender identity discrimination, Eyer said.

“What worries me much more is the vast majority of employees rely on employers to do the right thing. They don’t have the resources nor the will to bring litigation, they just want to not be subjected to discrimination to begin with,” she said.