Bench & Bar November/December 2025

to fire Gerald Bostock “for conduct unbe coming a county employee shortly after he began participating in a gay recreational softball league.” 6 The Eleventh Circuit was direct in its holding, stating that “discharge for homo sexuality is not prohibited by Title VII.” 7 On behalf of the 6-3 Supreme Court majority, Justice Gorsuch disagreed, writing that “it is impossible to discriminate against a person for being homosexual or transgender with out discriminating against that individual based on sex.” 8 In other words, the Court applied Title VII’s “simple but momentous” message to find that an “employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 9 Though momentous, the Court’s decision was not entirely unprecedented. In 2012, the Equal Employment Opportunity Com mission (the “EEOC” or “Commission”) reached a similar conclusion, finding that Title VII prohibits employers from dis criminating against employees because of their gender identity. 10 In 2015, the EEOC decided that Title VII protects employees from discrimination because of their sexual orientation. 11 About a year after Bostock , the EEOC affirmed its position by issuing new guid ance as a technical assistance document, outlining some of the ways an employee might face unlawful harassment related to their gender identity. 12 The guidance warned employers against treating work ers in a manner inconsistent with their gender identity, for example, by dictating their dress or behavior, or by denying them access to corresponding single-sex facilities ( e.g. , bathrooms and locker rooms). 13 Sim ilarly, employers were advised that, while it is not unlawful to accidentally misuse an employee’s preferred name or pronoun, the intentional and repeated use of the wrong names or pronouns could contribute to an unlawful hostile work environment. 14 The guidance was short-lived. In 2022, the U.S. District Court for the Northern District

Not long after delivering his 2025 inaugu ral address, President Trump nominated Lucas as acting chair of the EEOC and issued Executive Order 14168. 23 That order echoed the same criticisms as those in Lucas’s dissent, but it took an even stron ger stance against the “ideologues” whose efforts to “eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.” 24 The next day, Acting Chair Lucas affirmed her commitment to following the President’s executive orders by identifying some of her own consistent priorities, which include “defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work[.]” 25 However, the EEOC prematurely lost two of its commissioners (Charlotte Burrows and Jocelyn Samuels), one week after Lucas became acting chair. 26 This left the Commis sion with only two commissioners. Without a third member, the Commission lacked the quorum needed to rescind the revised guid ance, or to rescind other EEOC documents that are inconsistent with the President’s executive orders ( e.g. , its Strategic Plan, 2022-2026, and its Strategic Enforcement Plan, 2024-2028). 27 Similarly, though the agency can continue to file charges and initiate investigations without a quorum, a 2021 resolution pro hibits the EEOC general counsel from commencing or intervening in certain litigation without approval from the Com mission by majority vote. 28 This includes cases which would be most impactful, such as those alleging systemic discrimination and “pattern-and-practice” discrimina tion. 29 With only two commissioners, the Commission also cannot file cases that involve “a major expenditure of agency resources, including staffing and staff time, or expenses associated with extensive dis covery or expert witnesses[.]” 30 Likewise, and perhaps most significantly, the EEOC needs a quorum before it can vote to initiate litigation in which it would take a position contrary to local circuit precedent, as well as those which would “generate public con troversy” or implicate unsettled areas of the law. 31

of Texas vacated it as unlawful, finding that the guidance reflected a misreading of Bostock , and that Bostock only prevents an employer from discriminating against the “status” of an employee’s sexual orien tation or gender identity. 15 According to the court, a more accurate reading of Bostock's holding is that, while employers may not discriminate against employees because of their sexual orientation or gender identity, they may "regulate correlated conduct via specific dress, bathroom, pronoun, and healthcare policies, if otherwise consistent with Title VII case law." 16 The court also found that Charlotte Bur rows, then-chair of the Commission, improperly issued the guidance because she did so without first offering it to the public for notice and comment and then to the Commission for a vote. 17 Rather than appealing the decision, Burrows opted to revise the Commission’s existing Enforcement Guidance on Harassment in the Workplace, this time submitting the proposed revision to a 30-day period of public notice and comment. 18 The Commission then voted to approve the revised harassment guidance in 2024, but in 2025, the Northern District of Texas once again vacated the guidance as unlaw ful, finding that it contravened Title VII’s plain text by “expanding the scope of ‘sex’ beyond the biological binary [and] defin ing discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.” 19 LACKING QUORUM, LUCAS EXECUTES ORDERS In its 2025 decision, the Northern District of Texas noted the dissenting opinion of one Commissioner who voted against revising the guidance – Andrea Lucas. 20 In her dis sent, then-Commissioner Lucas described the revised guidance as an “egregious error” that turned anti-harassment prin ciples “completely upside down.” 21 Lucas further criticized the EEOC for ignoring the “biological reality” of sex, writing that it is not harassment to acknowledge that sex is “binary (male and female) . . . or to use language like pronouns that flow from these realities, even repeatedly.” 22

9 bench & bar