By: Philip Giorlando and Fred Preis
The Equal Employment Opportunity Commission voted 2-1 today to officially rescind anti-harassment guidance issued during the Biden administration that classified misgendering transgender employees as a form of sex discrimination under Title VII of the Civil Rights Act of 1964.
Background
This rescission continues the rollback of LGBTQ+ workplace protections that began with the second Trump administration. A federal court in Texas had already struck portions of this guidance in May 2025, particularly provisions addressing discrimination through bathroom and facility access aligned with gender identity.
Legal Context
The change reflects a narrower interpretation of the Supreme Court’s 2020 Bostock v. Clayton County decision than the Biden administration adopted. While Bostock established that Title VII prohibits discrimination based on gender identity and sexual orientation, the current EEOC is taking a more limited view of what conduct constitutes such discrimination.
Employer Considerations
- Policy Review: Employers should have their workplace policies reviewed, particularly those addressing harassment, pronouns, and facility access for transgender employees.
- Compliance Obligations: While this guidance has been rescinded, Bostock remains binding precedent. Employers must still comply with Title VII’s prohibition on discrimination based on gender identity and sexual orientation. Employers should seek legal guidance when making employment decisions that might implicate these ever-changing issues.
- State and Local Laws: Many state and local jurisdictions maintain their own anti-discrimination protections that may be broader than current federal guidance. Employers should seek guidance to ensure compliance with applicable state and local requirements.
- Ongoing Uncertainty: The legal landscape surrounding transgender employee rights continues to evolve. Employers should stay informed of further regulatory and judicial developments.
Recommended Actions
Employers should work with employment counsel to assess their current policies and practices in light of this change while maintaining compliance with existing legal obligations under Bostock and applicable state and local laws.
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