On May 15, 2025, a federal district court in Texas vacated portions of the Equal Employment Opportunity Commission’s (EEOC) 2024 Enforcement Guidance on Harassment in the Workplace relating to gender identity. In Texas v. Equal Employment Opportunity Commission, No. 2:24-CV-173 (N.D. Tex.), the court ruled that the EEOC exceeded its statutory authority by interpreting “sex” under Title VII to extend “beyond the biological binary.”
Background: EEOC’s 2024 Harassment Guidance
Issued in April 2024, the EEOC Guidance expanded the interpretation of “sex” under Title VII of the Civil Rights Act to include both sexual orientation and gender identity. The guidance identified conduct such as “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering)” and the “denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” as potential forms of unlawful harassment.
The Court’s Ruling in Texas v. EEOC
The court found that the EEOC’s interpretation “contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary.” While the U.S. Supreme Court in Bostock v. Clayton County, 590 U.S. 644 (2020), held that discrimination based on transgender status can be a form of sex discrimination, the Texas court emphasized that Bostock “assumed, without deciding, that sex in Title VII refers ‘only to biological distinctions between male and female.’”
Alignment with Executive Action
The court’s ruling aligns with President Donald Trump’s January 21, 2025, executive order, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (commonly referred to as the “Two Sexes EO”). The order declared it U.S. policy to “recognize two sexes, male and female,” and directed federal agencies to ensure single-sex spaces are designated based on biological sex. The order also instructed the EEOC to rescind the 2024 Guidance. However, due to a lack of quorum—with only two sitting commissioners—the EEOC has not formally rescinded the guidance. Following the ruling, the EEOC updated its website to indicate which portions of the guidance have been vacated. The agency is not expected to appeal the decision.
Legal and Practical Implications for Employers
Despite the court’s ruling, Bostock remains binding Supreme Court precedent: employers may still face liability under Title VII for discrimination based on sexual orientation or gender identity. However, the Texas decision injects new uncertainty around whether employers must accommodate employee requests for pronoun usage, bathroom access, and gender-based dress codes.
Even without the EEOC guidance, repeated intentional misgendering or name-calling could still be deemed unlawful harassment by courts, depending on the context. As a best practice, employers should continue to foster respectful workplaces, treating all individuals—regardless of sex, gender identity, sexual orientation, or religious beliefs—with dignity.
State and Local Law Considerations
Employers must also be aware of relevant state and local laws:
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24 states and D.C. prohibit employment discrimination based on gender identity.
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7 states and D.C. require access to sex-segregated spaces consistent with an individual’s gender identity.
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2 states have enacted laws making it a criminal offense to knowingly enter a sex-designated facility inconsistent with one’s sex assigned at birth.
On May 19, 2025, Colorado Governor Jared Polis signed the Kelly Loving Act, which mandates the use of an individual’s correct name and pronouns under state antidiscrimination law. The same day, the law was challenged in court on First and Fourteenth Amendment grounds.
Religious and ADA Accommodation Requests
Employers should anticipate an uptick in employee accommodation requests based on religious objections to pronoun or restroom policies, as well as requests for gender-identity-based accommodations under the Americans with Disabilities Act (ADA). Some courts have recognized gender dysphoria as a qualifying disability under the ADA.
Our Texas Employment attorneys feel these matters must be assessed on a case-by-case basis, engaging in the interactive process and evaluating whether accommodations can be made without imposing undue hardship.