Texas Court Strikes Down EEOC’s LGBTQ+ Guidance

Employment Law

A Texas federal court has struck down Equal Employment Opportunity Commission (EEOC) guidance on protections for LGBTQ+ employees.

In 2021, the EEOC issued “Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity,” a technical assistance document addressing issues such as workplace attire, pronouns and names, and the use of bathrooms, locker rooms and showers.

The guidance was released on the one-year anniversary of the U.S. Supreme Court’s ruling in Bostock v. Clayton County, where the justices held that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity.

The state of Texas sued the EEOC, asking the court to declare the guidance unlawful and enjoin its enforcement or implementation. Specifically, the state argued, among other things, that the guidance misstated the law and the EEOC violated the Administrative Procedure Act (APA) when it issued the guidance.

U.S. District Court Judge Matthew J. Kacsmaryk agreed, granting Texas’ motion for summary judgment.

In holding that the EEOC misstated the law in issuing the guidance, the court noted that “[t]he crux of the parties’ disagreement distills down to one question: is the nondiscrimination holding in Bostock cabined to ‘homosexuality and transgender status’ or does it extend to correlated conduct—specifically, the sex-specific: (1) dress; (2) bathroom; (3) pronoun; and (4) health care practices underlying” the EEOC guidance.

Agreeing with Texas, the court stated that the Bostock decision only addressed status, not conduct. According to the court, “Bostock decided only what Bostock decided: under Title VII, ‘[a]n employer who fires an individual merely for being gay or transgender defies the law.’” By seeking to apply Bostock beyond its holding, the EEOC misapplied the law when it issued its guidance.

The court also held that the EEOC violated both Title VII and the APA when it issued the guidance without following notice and comment rulemaking requirements.

According to the court, the guidance constitutes a substantive rule, as it goes “beyond informing the public and expressing the agency’s view as to Bostock effect in interpreting Title VII,” and instead “imposes new duties and ‘chang[ed] the text’ of the statute it ‘profess[ed] to interpret.’” As a substantive rule, the EEOC was required to, but did not, follow the APA’s notice and comment procedures before it issued the guidance.

In addition to the EEOC guidance, for similar reasons, the court also struck down a guidance document issued by the U.S. Department of Health and Human Services’ Office for Civil Rights, which prohibited federally funded entities from “restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity.”

To read the opinion and order in State of Texas v. Equal Employment Opportunity Commission, click here.

Why it matters: The EEOC has yet to indicate whether it will appeal the decision. Regardless of the ultimate fate of the guidance, Title VII’s prohibition on discrimination based on sexual orientation and gender identity is still the law, and employers must ensure their employees and applicants are not subjected to such discrimination.



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