Federal Government
EEOC reverses course on transgender workers’ right to choose restrooms
In a 2-1 ruling this week, the U.S. Equal Employment Opportunity Commission said Title VII of the Civil Rights Act of 1964 allows federal agencies “to maintain single-sex bathrooms and similar intimate spaces” and “to exclude employees, including trans-identifying employees, from opposite-sex facilities.” (Image from Shutterstock)
In a 2-1 ruling this week, the U.S. Equal Employment Opportunity Commission said Title VII of the Civil Rights Act of 1964 allows federal agencies “to maintain single-sex bathrooms and similar intimate spaces” and “to exclude employees, including trans-identifying employees, from opposite-sex facilities.”
The EEOC’s decision, which was issued Thursday, overturns part of Lusardi v. Department of the Army, a commission ruling from 2015 that said the U.S. Army discriminated against a transgender worker by not allowing her to use the women’s restroom. The EEOC said its colleagues’ reasoning in that case was “concerningly threadbare.”
Bloomberg Law has coverage of the decision.
In this latest case, the Army denied a request from a civilian IT specialist at Fort Riley, Kansas, to use female-designated bathrooms and locker rooms. The IT specialist had informed local management that she now identifies as a woman.
The EEOC affirmed the Army’s decision, noting that male and female employees are not similarly situated when it comes to bathrooms, and separating them in the workplace under these circumstances is not discriminatory. The EEOC also said there should not be an exception made for transgender employees.
While the U.S. Supreme Court held in Bostock v. Clayton County in 2020 that Title VII protects lesbian, gay, bisexual and transgender workers from discrimination, it didn’t address the use of restrooms, the EEOC said.
“Crucially, the rule announced in Bostock is one of equal treatment,” the EEOC said, noting that the Army in the present case aims to treat transgender employees the same as employees who are not transgender.
“If a non-trans-identifying man asked to use the women’s bathroom, the agency surely would have rebuffed the request,” the EEOC said. “That the agency gives the same answer to male and female employees alike, and to trans-identifying and non-trans-identifying employees alike, only goes to show its evenhandedness.”
Bloomberg Law reports that Kalpana Kotagal, the only Democrat on the Republican-controlled EEOC, described the decision as “legally suspect.”
“The 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,” Kotagal said, according to Bloomberg Law. “Worse, it suggests that transgender people do not exist.”
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