Dive Brief:
- Federal agencies may require transgender employees to use bathrooms and similar “intimate spaces” that correspond to their sex at birth, the U.S. Equal Employment Opportunity Commission held in a 2-1 appellate decision Thursday.
- EEOC said such policies do not violate Title VII of the 1964 Civil Rights Act because the law only requires that agencies treat transgender employees the same as nontransgender employees. For example, an agency may prohibit transgender men from entering a men’s restroom if it would also prohibit cisgender women from doing so, per the commission.
- The decision overturns a 2015 ruling in which EEOC held that the Army Department violated Title VII when it restricted a transgender woman from accessing a women’s restroom because of her gender identity. In a LinkedIn post, EEOC’s lone Democratic commissioner, Kalpana Kotagal, said she voted against the decision.
Dive Insight:
EEOC noted that its decision in Selina S. v. Driscoll applied only to federal agencies subject to the agency’s administrative complaint process. However, the decision could reverberate well beyond that small segment of the public sector, said Sam Schwartz-Fenwick, partner at Seyfarth Shaw.
That’s in part because of the decision’s discussion on the limits of the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which held that Title VII’s prohibition of sex-based discrimination extended to discrimination on the basis of sexual orientation and gender identity.
The Bostock court explicitly declined to weigh in on issues such as bathroom and locker room policies, EEOC said, and no other federal court has since authoritatively addressed the topic. Therefore, the commission said its decision sought to “accurately predict how a responsible court would interpret the statute on this issue.”
This component of the decision is itself controversial, with Kotagal writing that EEOC could and should have waited for a federal court’s consideration. She cited one relevant case that is ongoing before the U.S. District Court for the District of Columbia, Withrow v. U.S. By not waiting for such case law to develop, EEOC’s majority “rushed to issue this decision,” Kotagal said.
Nonetheless, EEOC determined that Bostock would not prohibit policies preventing transgender employees from using bathrooms and similar facilities other than those that align with their sex at birth. Whereas the employers in Bostock treated transgender workers worse than nontransgender employees, the agency in Driscoll had not done so, EEOC concluded.
Single-sex bathrooms, EEOC continued, are permissible because men and women are not similarly situated in that context. The agency said women have a “vital privacy interest” in using single-sex spaces outside the presence of men — and vice versa — that Title VII does not disturb.
“The interest in single-sex privacy is especially heightened for women attending to hygiene related to menstruation, pregnancy, or lactation,” EEOC said. “No man will ever experience a period, bear a child, or nurse an infant, and we do not think it improper that female employees would expect to manage their unique needs in a space accessible only to other women.”
Kotagal said the majority’s decision “fails to grapple with the consequences that flow from it,” adding that agencies would be at risk of being found liable for denying workers access to restrooms consistent with their gender identities. She also said that transgender workers could be vulnerable to harm as a result of the decision.
Driscoll tees up potential future challenges on the limits of Bostock, said Schwartz-Fenwick, who expects to see more pressure on employers generally to roll back inclusive bathroom policies. But he cautioned employers against making changes without first consulting with legal counsel, noting that doing so could present legal risks as well.
“This is one step in a long process of clarifying the law, so don’t make any rash decisions,” Schwartz-Fenwick said.