Federal judge strikes down workplace protections for transgender workers

Boston Globe

16-05-2025

The EEOC, which enforces workplace anti-discrimination laws, had updated its guidance on workplace harassment in April of last year under President Joe Biden for the first time in 25 years. It followed a 2020 Supreme Court ruling that gay, lesbian and transgender people are protected from employment discrimination.
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Texas and the Heritage Foundation, the conservative think tank behind Project 2025, in August challenged the guidance, which the agency says serves as a tool for employers to assess compliance with anti-discrimination laws and is not legally binding. Kacsmaryk disagreed, writing that the guidance creates 'mandatory standards ... from which legal consequences will necessarily flow if an employer fails to comply.'
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The decision marks the latest blow to workplace protections for transgender workers following President Donald Trump's Jan. 20 executive order declaring that the government would recognize only two 'immutable' sexes — male and female.
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Kacsmaryk, a 2017 Trump nominee, invalidated all portions of the EEOC guidance that defines 'sex' to include 'sexual orientation' and 'gender identity,' along with an entire section addressing the subject.
'Title VII does not require employers or courts to blind themselves to the biological differences between men and women,' he wrote in the opinion.
Heritage Foundation president Kevin Roberts commended the decision in an emailed statement: 'The Biden EEOC tried to compel businesses — and the American people — to deny basic biological truth. Today, thanks to the great state of Texas and the work of my Heritage colleagues, a federal judge said: not so fast.'
He added: 'This ruling is more than a legal victory. It's a cultural one. It says no — you don't have to surrender common sense at the altar of leftist ideology. You don't have to pretend men are women."
Texas Attorney General Ken Paxton also touted the victory against 'Biden's ​'Pro­noun Police' Rule" in a Friday press release, saying: 'The federal government has no right to force Texans to play along with delusions or ignore biological reality in our workplaces.'
The National Women's Law Center, which filed an amicus brief in November in support of the harassment guidance, blasted the decision in an emailed statement.
'The district court's decision is an outrage and blatantly at odds with Supreme Court precedent,' said Liz Theran, senior director of litigation for education and workplace justice at NWLC. 'The EEOC's Harassment Guidance reminds employers and workers alike to do one simple thing that should cost no one anything: refrain from degrading others on the job based on their identity and who they love. This decision does not change the law, but it will make it harder for LGBTQIA+ workers to enforce their rights and experience a workplace free from harassment.'
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Kacsmaryk offered a more narrow interpretation of Bostock v. Clayton County, the landmark Supreme Court case that established discrimination protections for LGBTQ+ workers, saying in his decision that the Supreme Court 'firmly refused to expand the definition of 'sex' beyond the biological binary,' and found only that employers could not fire workers for being gay or transgender.
Employment attorney Jonathan Segal, a partner at Duane Morris who advises companies on how best to comply with anti-discrimination laws, emphasized that legal minds may disagree on the scope of Bostock, and Kacsmaryk's decision is just one interpretation.
'If you assume that a transgender employee has no rights beyond not being fired for transgender status, you are likely construing their rights too narrowly under both federal and state law,' which would put employers in a risky position, Segal said.
And regardless of whether explicit guidance is in place, employers still need to address gender identity conflicts in the workplace, according to Tiffany Stacy, an Ogletree Deakins attorney in San Antonio who defends employers against claims of workplace discrimination.
'From a management perspective, employers should be prepared to diffuse those situations,' Stacy said.
The EEOC in fiscal year 2024 received more than 3,000 charges alleging discrimination based on sexual orientation or gender identity, and 3,000-plus in 2023, according to the agency's website.
The U.S. Department of Justice and the EEOC declined to comment on the outcome of the Texas case.
EEOC Acting Chair Andrea Lucas, a Trump appointee, voted against the harassment guidelines last year but has been unable to rescind or revise them after Trump fired two of the three Democratic commissioners, leaving the federal agency without the quorum needed to make major policy changes.
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But earlier this month, Trump tapped an assistant U.S. attorney in Florida, Brittany Panuccio, to fill one of the vacancies. If Panuccio is confirmed by the Senate, the EEOC would regain a quorum and establish a Republican majority 2-1, clearing the path to fully pivot the agency toward focusing on Trump's priorities.
'It is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms,' Lucas wrote in a statement expressing her dissent to that aspect of the guidelines.
In her four-month tenure as Acting Chair, Lucas has overhauled the agency's interpretation of civil rights law, including abandoning seven of its own cases representing transgender workers alleging they have experienced discrimination, and instructing employees to sideline all new gender identity discrimination cases received by the agency.