The US EEOC has “renounced” parts of its enforcement guidance regarding gender identity accommodations and urged a federal court to deny Tennessee relief from the guidance while the agency reconsiders it.
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The US Equal Employment Opportunity Commission (EEOC) filed a cross motion for summary judgment on 2 May 2025 in Tennessee’s lawsuit against the agency, in which the plaintiffs seek to vacate portions of the EEOC’s Enforcement Guidance on Harassment in the Workplace. The EEOC said the plaintiffs lack Article III standing and requested that the US District Court for the Eastern District of Tennessee deny the plaintiffs summary judgment.
Claims against enforcement guidance
Tennessee and 17 other states filed a complaint against the EEOC’s enforcement guidance on 13 May 2024. The 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.
The plaintiffs argued in their 14 March 2025 motion for summary judgment that the EEOC’s treatment of gender identity in its enforcement guidance “contravenes Title VII.” Specifically, the states claimed that “longstanding practices of maintaining sex-separated facilities like bathrooms, locker rooms, and changing areas do not discriminate.” They also noted that the US Supreme Court did not “purport to address bathrooms, locker rooms, or anything else of the kind” in its Bostock decision.
The EEOC on 2 May noted the agency’s new position on gender identity under acting chair Andrea Lucas. It said the federal government’s stance “on the underlying interpretative question the States seek to present demonstrates that the strong medicine of injunctive relief is unnecessary.”
The EEOC also rejected the plaintiffs’ claims that the enforcement guidance violates the Administrative Procedure Act 1946, as the law “authorizes judicial review only of final agency action.” The EEOC claimed that the guidance “is no such final action.”
“[The enforcement guidance] does not purport to establish of its own force any rule of law that regulated entities must follow. Rather, it sets forth the prior administration’s (now renounced) position on legal requirements flowing from other legal sources: Title VII and judicial precedent interpreting that statute,” the EEOC said. “Because the Guidance binds neither the EEOC nor regulated parties, it is unreviewable.”
A quorum-less EEOC
Oral arguments were scheduled to take place in January, but the EEOC moved to vacate the hearing date after US President Donald Trump issued an executive order entitled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government on 20 January 2025.
Among other things, the executive order 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.
The court denied the EEOC’s motion to vacate and directed the parties to refile briefs that “account for the changed legal landscape.”
The EEOC said on Friday that its “argument is not dependent on the conclusion that the Guidance is lawful or a correct statement of the law.” Instead, the agency acknowledged that it currently lacks a quorum after Trump fired Democratic commissioners Jocelyn Samuels and Charlotte Burrows January and is therefore unable to issue or repeal any guidance. The EEOC said “the challenged portions of the Guidance should be rescinded when the EEOC is able to do so.”
“Even if the EEOC was wrong about what Title VII required, the States still lack standing because any such error has caused them no harm. A plaintiff ‘may not sue based only on an asserted right to have the Government act in accordance with law,’” the EEOC wrote.
The EEOC also argued that the plaintiffs lack standing to name the US Department of Justice (DOJ) as a defendant. The agency said the states did not “provide evidence to support that DOJ ever adopted any challenged interpretation of Title VII contained within the Guidance.”
Tennessee is expected to file a reply on 16 May 2025.
Counsel to Tennessee
Office of the Tennessee Attorney General
Whitney Hermandorfer, Steven J. Griffin, Harrison Gray Kilgore in Nashville, Tennessee