The EEOC and state lawmakers take aim at transgender job protections– What employers need to know

On January 22, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its 2024 Biden-era Enforcement Guidance on Harassment in the Workplace. In particular, the EEOC eliminated enforcement guidance requiring employers to provide bathroom, dress, and pronoun accommodations to both applicants and workers.  

For context, the 2021 and 2024 EEOC Guidance followed on the heels of the United States Supreme Court’s 2020 decision in Bostock v. Clayton County, where the Court ruled that sexual-orientation discrimination and gender identity/transgender discrimination are forms of “sex” discrimination prohibited under Title VII of the Civil Rights Act (Title VII).  Specifically, the U.S. Supreme Court stated, “An employer who fires an individual merely for being gay or transgender violates Title VII.”  Subsequently, the then-Democratic-controlled EEOC issued guidance documents in 2021 and then 2024, laying out, among other things, examples of what the EEOC would consider discriminatory related to the protected status of transgender employees.

However, in 2025, consistent with President Trump’s bevy of executive orders, and, in particular, the one where the federal government recognizes only two sexes, the then acting Chair of the EEOC, Andrea Lucas, vowed to “defend the biological and binary reality of sex and related rights, including women’s rights to single sex-spaces at work.”  In her cross-hairs was the EEOC’s 2024 guidance document, which has now, a year later, been rescinded in the EEOC’s 2-1 decision.

Indeed, this rollback has made and/or is making its way to several state legislatures that have introduced legislation to eliminate protections for employees based on gender identity.  For example, last year, Iowa passed a law removing gender identity as a protected status under that state’s civil rights laws.  Since this time, several other states have introduced similar bills to eliminate gender identity as a protected classification.  For example, last year, Illinois (SB 2078) and Michigan (HB 4777) were introduced seeking to eliminate and/or limit gender identity as a defined protected trait.  Likewise, this year, New Hampshire (HB 1564) and Utah (HB 183) similarly seek to eliminate gender identity as a protected status.

For employers, however, the “noise” surrounding this topic does little to change the scope of federal law on sexual orientation and/or gender identity as protected traits under Title VII.  That is, the U.S. Supreme Court’s Bostock decision is the law of the land as it pertains to Title VII, and thus both sexual orientation and gender identity remain protected classifications under federal law.  Moreover, employers should continue to make employment decisions based on objective, non-discriminatory factors and ensure, to the best of their ability, that their employment culture is positive and free of discrimination and bias. 

If you have any questions, contact a member of our Labor and Employment Practice Group.