Federal court in Texas rolls back EEOC guidance on LGBTQ+ rights

On June 15, 2020, in Bostock v. Clayton County, the U.S. Supreme Court declared that sex discrimination also included discrimination based on sexual orientation and sexual identity. Notably, the Court didn’t address whether its ruling would have any impact on workplace rules governing pronoun usage, bathrooms, locker rooms, and dress codes. A year later, on June 15, 2021, the Equal Employment Opportunity Commission (EEOC) published guidance on the Bostock decision to help employers and employees navigate the new landscape.

The EEOC’s guidance

In particular, the EEOC guidance identifies issues specific to the transgender community. This includes the agency’s position that each the following actions could constitute sex discrimination and contribute to a hostile work environment:

• Intentional and repeated misuse of a transgender employee’s name and pronouns;
• Denying an employee’s use of a bathroom or locker room that corresponds to their gender identity; and
• Prohibiting a transgender employee from dressing or presenting consistent with their gender identity.

The EEOC’s guidance didn’t meet with universal approval. Indeed, the state of Texas sued the agency and various other federal officials arguing the guidance misstates the Bostock decision. This, in turn, increases the scope of liability on the state of Texas in its capacity as an employer.