Federal agencies can restrict bathroom access by sex, EEOC rules

The Equal Employment Opportunity Commission said federal agencies can ban employees from using the bathroom that corresponds with their gender identity, the latest in a series of moves by the Trump administration to roll back transgender rights in the workplace.

The decision overturned part of an earlier decision that said denying transgender federal workers access to bathrooms that match their gender identity is a form of sex discrimination and harassment.

The 2-1 Republican majority on the commission quoted President Donald Trump’s executive order recognizing only two sexes, male and female. That order directed federal agencies to ban transgender individuals from single-sex spaces that fit their gender identity.

Federal law “permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces. And it permits a federal agency employer to exclude employees including trans-identifying employees from opposite-sex facilities,” the decision said. 

The commission’s lone Democrat, Kalpana Kotagal, dissented. 

“The decision rests on the false premise that transgender workers are not worthy of the agency’s protection from discrimination and harassment,” Kotagal wrote.

Bathroom access is unsettled legal question

Whether employees should have access to a bathroom that matches their gender identity is an unsettled legal question.

Cathryn Oakley, senior director of legal policy for the LGBTQ+ advocacy group Human Rights Campaign, said the decision acknowledged the lack of legal precedent for such a decision. She also said it puts transgender federal employees at risk of being banned from using restrooms, locker rooms and other private spaces that align with their gender identity.

“Everyone should be able to go to work and support their families without facing discrimination and harassment simply because of who they are,” Oakley said in a statement. “But that kind of hostile workplace is exactly what this ruling emboldens.”

Roger Severino, vice president of economic and domestic policy for the Heritage Foundation, praised the EEOC for holding that "trans-identifying Fed employees don’t have special access rights to bathrooms, showers, or lockers of the opposite sex.”

“This is a HUGE victory for common sense, the rule of law and women’s spaces in particular,” he wrote on the social media platform X. 

EEOC flips position on transgender bathrooms

For more than a decade, the EEOC has held that discrimination based on an employee’s transgender identity is illegal. In 2020, the Supreme Court extended federal workplace protections to LGBTQ+ employees, ruling that discrimination based on transgender status “necessarily entails discrimination based on sex.”

But in siding with three employees who were fired because of their sexual orientation or gender identity, the nation’s highest court said it was not addressing "bathrooms, locker rooms or anything else of the kind."

“Whether other policies and practices might or might not qualify as unlawful discrimination," Supreme Court Justice Neil Gorsuch wrote, "are questions for future cases."

During the Biden administration, the EEOC issued guidance that unlawful workplace harassment includes denying access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

Some courts agreed, but last May, a federal judge in Texas gutted that guidance, saying the EEOC exceeded its statutory authority in "defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun and dress preferences."

How the office bathroom joined the culture wars

The office bathroom – that prosaic fixture of everyday work life with its industrial-grade metal stalls and fluorescent lighting – has become a major battleground in the nation’s culture wars.

In recent years, legislation has swept red statehouses across the country, contesting the civil rights gains of LGBTQ+ Americans. In 2016, North Carolina became ground zero for the movement when it passed what became known as the “bathroom bill.” Today, 1 in 3 transgender people live in states with some bathroom restrictions, according to the Movement Advancement Project. 

After campaigning against what he called “transgender insanity,” Trump issued directives in his second term that roll back protections and workplace policies for people who identify as transgender.

EEOC Chair Andrea Lucas has said her top priority is to “defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”

This decision “is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally,” Lucas said in a statement.

The Justice Department has warned that “federally funded institutions” that allow men who identify as women to access single-sex spaces “undermine the privacy, safety, and equal opportunity of women and girls” and risk creating a hostile work environment.

The legal stance has drawn fire from former officials of the EEOC and the Labor Department who served in several presidential administrations and formed a group called EEO Leaders. EEO Leaders have criticized the move to "shade out" all references to harassment based on sexual orientation and gender identity.

While the Supreme Court took no position on those issues, “it is a gross misreading of the decision to assert that the Court’s silence on those particular issues means that all harassment based on sexual orientation or gender identity is not prohibited discrimination,” EEO Leaders said previously.

Some legal experts expect the Trump administration to extend bathroom restrictions to the private sector where they would affect about 2.1 million transgender adults who make up less than 1% of the population.

Most employers have prohibitions against harassment based on gender identity and have made efforts to create an inclusive environment for transgender employees. 

Now they face a quandary when deciding which employee to accommodate: a transgender individual's right to use the bathroom of their choice or a co-worker who objects to it, lawyers say.