Courts sceptical of EEOC’s gender identity guidance

The US District Court for the Northern District of Texas vacated portions of the US Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Harassment in the Workplace on 15 May 2025. The next day, Tennessee and 17 other states urged the US District Court for the Eastern District of Tennessee to permanently enjoin the EEOC from enforcing the guidance’s gender identity-based accommodations.

The EEOC’s enforcement guidance cites the US Supreme Court’s 2020 decision in Bostock v Clayton in recognising harassment based on gender identity as discrimination under Title VII of the Civil Rights Act 1964. Republican-led states have been challenging the guidance since it was issued in 2024, with Tennessee and Texas filing separate lawsuits against the EEOC within three months of each other.

The Texas district court found several portions of the guidance “contrary to law,” including all language defining “sex” in Title VII as “sexual orientation” or “gender identity” and all language recognising both terms as a protected class.

Guidance is “the ‘consummation’ of EEOC’s decisionmaking process”

The EEOC has argued in both cases that the enforcement guidance is not final agency action and is thus “unreviewable.” In its 16 May 2025 reply, Tennessee said the EEOC “cannot so easily sidestep the recognized distinction between the constitutional standing and ‘final agency action’ inquiries.”

“At bottom, the Court should not credit Defendants’ head-scratching claim that EEOC underwent notice-and-comment to promulgate a document substantively identical to a prior regulation that was invalidated for failing to clear that procedural hurdle, all so that the resulting Enforcement Document would have no legal effect,” Tennessee wrote. “Rather, considering the Enforcement Document’s text, its practical effects, and EEOC’s history of attempting to impose the gender-identity accommodations therein, the Court should find that Plaintiff States’ challenge is justiciable.”

Tennessee noted that the Texas district court “rejected” the EEOC’s argument on 15 May, ruling that the agency’s enforcement guidance “is neither tentative nor interlocutory” but instead “determines the legal obligations of employers in navigating accommodation requests from transgender employees.”

The court described the guidance as “the ‘consummation’ of EEOC’s decisionmaking process” and said its “boilerplate disclaimer” does not prevent courts from considering it final agency action.

“Here, the Enforcement Guidance trumpets: employers should preemptively accommodate all transgender employees’ bathroom, dress, and pronoun requests to avoid the headache of litigation. If refusing to use pronouns inconsistent with an employee’s biological sex constitutes discriminatory harassment . . . why should an employer even risk a Title VII violation?” the order said. “The practical effect of the Enforcement Guidance is an unmistakeable message to employers: it’s better to be safe than sorry.”

The Texas district court said the plaintiffs had standing to challenge the enforcement guidance because “[t]he compliance costs alone constitute an irreparable injury, i.e., revising, updating, and generating new policies, posters, manuals, and training.”

Guidance is “unlawful”

Both Tennessee and Texas have argued that the EEOC’s enforcement guidance unlawfully relies on Bostock, in which the US Supreme Court did not “purport to address bathrooms, locker rooms, or anything else of the kind.” In Thursday’s order, the district court in Texas held that the enforcement guidance cannot justify its “metastasized definition of ‘sex’” to include gender identity, nor can it “fill in the blanks” for the US Supreme Court.

The court said that, following Bostock, “Congress could have redefined Title VII ‘sex’ to include” gender identity and the related accommodations. But the EEOC, as the court pointed out, does not have this authority.

“[T]he absence of any reference to ‘gender identity’ or ‘sexual orientation’ in Title VII’s definition of ‘sex’ and Congress’s failure to include any specific accommodation for ‘gender identity’ and ‘sexual orientation’ further demonstrate that requiring such accommodations contravenes Title VII’s plain text,” the order said.

Similarly, Tennessee argued on 16 May that the enforcement guidance’s gender identity-based accommodations “have no basis in Title VII and exceed EEOC’s limited power to craft procedural rules.”

EEOC plans to rescind enforcement guidance

The nature of Tennessee’s and Texas’ lawsuits has changed since US President Donald Trump took office in January and immediately issued an executive order (EO) entitled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. Among other things, the EO provides that the US government will only recognise biological sex and instructs federal agencies to rescind any guidance inconsistent with that recognition. Trump specifically mandated the rescission of the EEOC’s enforcement guidance.

Tennessee noted on Friday that the EEOC, under acting chair Andrea Lucas, recently renounced its former position on the guidance. Following Trump’s EO and his terminations of two commissioners, the EEOC said on 2 May 2025 that “the challenged portions of the Guidance should be rescinded when the EEOC is able to do so.” The plaintiffs responded that the only remaining question is whether the enforcement guidance should be left “for individual Commissioners and EEOC staff to wield against the States.”

In vacating portions of the EEOC’s enforcement guidance, the Texas district court cited Trump's EO as a reason not to issue a permanent injunction. The court noted that the EEOC will align its views on gender identity accommodations with the federal government once it returns to a quorum, and that the vacatur provides appropriate relief until then.

It is unclear whether the district court in Tennessee will follow suit. The EEOC is expected to file a reply on 2 June 2025.

Counsel to Tennessee

Office of the Tennessee Attorney General

Whitney Hermandorfer, Steven J. Griffin, Harrison Gray Kilgore in Nashville, Tennessee

Counsel to Texas

Office of the Texas Attorney General

Ken Paxton, Brent Webster, Ralph Molina, Austin Kinghorn, Ryan Walters, Kyle Tebo in Austin, Texas