To be clear, the EEOC’s new policy contradicts its past rulings, where it recognized that denying employees access to bathrooms consistent with their gender identity would constitute unlawful discrimination. Ironically, the agency now argues that enforcing sex-based distinctions in workplace facilities is not discriminatory.

In response to Executive Order 14168, Lucas has initiated several actions within the EEOC:

• Prioritization of Binary Sex-Based Rights: the EEOC will focus its compliance, investigations, and litigation efforts on defending the “biological and binary reality of sex,” emphasizing women’s rights to single-sex spaces in the workplace.
• Removal of Pronoun Identification Features: the agency has disabled the “pronoun app” in employees’ Microsoft 365 profiles, which previously allowed staff to display their preferred pronouns across platforms like Outlook and Teams.
• Elimination of Nonbinary Gender Markers: the option to select a nonbinary “X” gender marker or “Mx.” prefix on discrimination charge forms has been removed.
• Review and Removal of Gender Ideology Materials: the EEOC is conducting a thorough review to eliminate materials that “promote gender ideology” from its internal and external communications, including websites and official documents.
• Reevaluation of “Know Your Rights” Poster: the agency has initiated a review of the mandatory workplace poster to ensure it aligns with the new directives concerning sex-based rights.

The EEOC’s policy shift has elicited a spectrum of responses from the employment law community, reflecting deep divisions over the interpretation and enforcement of anti-discrimination laws. Supporters of the new directives contend that the Biden administration’s policies blurred the legal distinctions between sex and gender identity, resulting in less protections specifically designed for women. They argue that reaffirming a binary understanding of sex is essential to upholding the original intent of sex-based protections in the workplace. Some others assert that the rollback is a necessary correction to ensure that women’s rights to single-sex facilities and programs are preserved. They further argue that policies accommodating gender identity can inadvertently infringe upon the rights of biological women to use restrooms, locker rooms and other private spaces.

On the other side of the coin are those who argue the EEOC’s actions are a significant departure from, and regression of, civil rights protections, particularly for transgender and nonbinary individuals. Removing gender identity from the agency’s enforcement priorities is likely to lead to an increase in discrimination and harassment targeting LGBTQ+ employees. This would run counter to the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, 590 U.S. 644 (2020), which established that discrimination based on gender identity or sexual orientation is a form of sex discrimination under Title VII. The EEOC’s current stance is likely to conflict with this precedent. As it stands, however, employment discrimination against transgender and gender nonconforming individuals remains illegal under federal law.

The EEOC’s policy shift also introduces a whole new challenge for employers striving to maintain compliant and inclusive workplaces. One such challenge employers will contend with is balancing the new federal directives with existing state and local laws that provide explicit protections for gender identity and expression. In Pennsylvania, for example, the term “sex” is defined under the Pennsylvania Human Relations Act as “sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.” In 2023, the Pennsylvania Human Relations Commission released new regulations, expanding the definitions of “sex,” to also include:

• Pregnancy status.
• Childbirth status.
• Breastfeeding status.
• Sex assigned at birth.
• Gender identity or expression.
• Affectional or sexual orientation.
• Differences in sex development.

The EEOC’s return to a binary interpretation of sex-based protections marks a pivotal moment in our nation’s history. There are many in the LGBTQ+ community who will view this move by the administration, vis-à-vis the EEOC, as an attempt to whitewash their existence. Considering how hard it was to achieve legal protections in the first place, it’s hard to interpret the new policy in any other way than just that—a whitewashing.

Despite the Trump administration’s efforts to target the most vulnerable members of America’s diverse workforce, absent congressional repeal, Title VII and the Equal Employment Opportunity Act are still the law of the land, and they are still valid and enforceable. Employment law practitioners remain steadfast in our duty to enforce the rules of law and protect employee rights in the workplace.

Jeffrey Campolongo is the founder of the Law Office of Jeffrey Campolongo, which, for over 25 years, has been devoted to counseling employees, professionals and small businesses in employment discrimination and human resource matters, as well as guiding aspiring and established artists and entertainers regarding various legal issues arising in the entertainment and media industries.

Emily Kemmerer is a second-year law student at Villanova University Charles Widger School of Law and a staff writer on theVillanova Law Review. She is interested in both labor and employment law.