In a first-time ruling—and a return to common sense—the U.S. Equal Employment Opportunity Commission (EEOC) rejected a discrimination complaint filed by a transgender Army worker after he was denied use of the women’s bathrooms and locker rooms at his base.
Drawing on the everyday understanding of the word “sex,” the EEOC concluded in Selina S. v. Driscoll that Title VII of the Civil Rights Act of 1964 allows a federal agency employer to maintain single-sex bathrooms and similar intimate spaces.
By the same token, it permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite-sex facilities.
The male worker, “Selina S.,” was a civilian IT specialist at a U.S. Army base in Kansas. He had used the men’s facilities uneventfully until last summer, when he began “identifying” as a female and asked to use the women’s bathrooms and locker rooms. The management denied his request, relying on federal policy directing that “intimate spaces . . . are designated by sex and not identity.” He then filed a formal complaint claiming the policy is unlawful sex-based discrimination, which the Army summarily dismissed for failure to state a claim.
On appeal, in a 2-1 vote along party lines, the EEOC agreed.
First off, as used in Title VII, “sex” refers to “an individual’s immutable biological classification as either male or female,” the majority determined.
In other words, sex means “biological sex.”
Moreover, changing one’s conduct doesn’t change one’s sex: “A man who identifies as a ‘transwoman’ is still a man; a woman who identifies as a ‘transman’ is still a woman. Both may be excluded from opposite-sex bathrooms as such.”
Because both women and men have a “vital privacy interest” in using the restroom outside members of the opposite sex,” the majority concluded that “to separate men and women in the workplace under these circumstances is not discriminatory under Title VII.”
The Driscoll decision overturns a 2015 EEOC ruling requiring federal agencies to allow trans-identifying employees access to the opposite-sex restroom. The majority called their predecessors’ analysis in that case, Lusardi v. Dep’t of the Army, “concerningly threadbare.”
However, the lone dissenter, Kalpana Kotagal, says “Lusardi’s reasoning endures.” The Driscoll decision “rests on the false premise that transgender workers are not worthy of the agency’s protection from discrimination and harassment and that protecting them threatens the rights of other workers.” “Worse,” she continues, “it suggests that transgender people do not exist.”
The EEOC’s ruling is not binding on the federal courts, none of which, the ruling points out, have authoritatively addressed whether single-sex bathrooms are lawful under Bostock v. Clayton County. In Bostock, the Supreme Court held that an employer who fires an employee simply for being transgender violates Title VII’s ban on sex discrimination. The Court emphasized it was not opining on “bathrooms, locker rooms, or anything else of the kind.” Many courts nonetheless ran with Bostock to rule that transgender-identity-based harassment is sex discrimination under Title VII, as I wrote in 2024, here and here.
But that was then. The EEOC had just released new guidelines to catch up to those courts—and broaden the definition of workplace discrimination to include harassment based on “gender identity.”
Under that 2024 guidance, employers who misgendered employees (i.e., referred to them with a pronoun inconsistent with their known gender identity) or denied them access to restrooms based on their gender identity were liable for sex-based workplace harassment.
Commissioner Andrea Lucas, one of two dissenters at the time, lamented the perverse result: Working women would have to share the ladies’ room with men, putting them at risk for exactly the kind of sexual harassment (or worse) Title VII was meant to protect them from.
And this is now. In January, the EEOC rescinded the 2024 guidelines, under the leadership of Lucas, the new Chair.
While the Driscoll decision only applies to federal employees in federal agencies—not to the private sector—it’s another sign of the times: Yesterday’s dissenters are today’s leaders. At the EEOC, as elsewhere throughout the administration, they’re flipping the script:
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