The EEOC recently voted 2–1 to allow federal agencies to restrict bathrooms and other intimate spaces based on biological sex, effectively excluding transgender employees from facilities consistent with their gender identity.
EEOC Chair Andrea Lucas summarized the majority’s position simply: “Biology is not bigotry.”
The problem? The Supreme Court already weighed in on this.
In Bostock v. Clayton County, the Court held that discriminating against transgender employees is sex discrimination under Title VII.
That wasn’t a narrow ruling — it was a statutory interpretation that agencies can’t simply sidestep by returning to the “ordinary meaning” of sex in 1964. Once the Supreme Court interprets a statute, agencies don’t get to rewind the clock.
A few important clarifications:
This EEOC decision applies only to federal agencies. It does not apply to private employers, does not bind federal courts, and does not overrule Bostock. What it does do is create tension with Supreme Court precedent — and invite litigation.
What this means for your workplace
Most private employers have been managing restroom access pragmatically for years without operational chaos. That approach is both legally sound and practically wise. Policies that treat transgender employees consistent with their gender identity — while maintaining reasonable privacy protections for everyone — remain the lower-risk path under existing federal law.
Employment law should address real workplace harms. The best thing employers can do right now is stay consistent, stay inclusive, and stay out of the crossfire of a legal dispute that isn’t theirs to fight.
