Federal judge throws out EEOC’s LGBTQ guidance

A federal judge in Texas has ruled an Equal Employment Opportunity Commission (EEOC) guidance on LGBTQ+ protections is unlawful.

The guidance stipulated that employers should allow transgender employees to access bathrooms aligned with their gender identity and that acts countering a person’s gender expression or pronouns could constitute discrimination.

In the ruling, U.S. District Court Judge Matthew Kacsmaryk vacated the guidelines, saying that the EEOC misinterpreted the landmark U.S. Supreme Court decision in Bostock v. Clayton County. That ruling extended Title VII Civil Rights Act protections to LGBTQ+ employees.

Kacsmaryk’s opinion states that Bostock protected LGBTQ workers “but not necessarily all correlated conduct.”

Furthermore, the court reasoned that the EEOC guidance was substantive enough that it should have been implemented through a regulatory process.

The decision follows a separate legal challenge filed by 20 states. In July, a Tennessee federal court issued a preliminary injunction against enforcement of the EEOC guidance.

Employers should be aware that the EEOC could reissue its guidance following the necessary notice and rulemaking procedures. It may be in employers’ best interests to maintain adherence to the vacated guidance to avoid the risk of future suits.