EEOC Says Agencies May Now Restrict Bathroom Access for Transgender Federal Workers

Quick Hits

• Federal agencies may now restrict transgender employees’ access to sex-segregated facilities matching their gender identity under the EEOC’s new interpretation of Title VII.
• The 2–1 ruling along party lines overturns decades-old precedent dating back to the EEOC’s 2015 decision in Lusardi v. Department of the Army, which supported bathroom access corresponding to gender identity.
• Commissioner Kalpana Kotagal dissented, warning the decision could cause an “exodus of transgender employees from the federal government” due to safety issues and other concerns.
• Still, the practical effect of the ruling is limited at present, as it applies only to federal agencies and does not bind federal courts.

The EEOC’s Driscoll Decision

Selina S. worked as a civilian IT employee at a U.S. Army base in Kansas. Selina S. requested access to a bathroom corresponding to her gender identity in the summer of 2025 as part of her gender transition. Federal management denied her request, citing Executive Order 14168 and recent instructions that “intimate spaces” in federal workplaces are “designated by sex and not identity.”

A quorum of the EEOC voted 2–1 along party lines to affirm the dismissal of Selina S.’s complaint. Applying the administration’s policy that “sex” is binary and immutable, the majority found that “Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces. And it permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite-sex facilities.”

The ruling states that “[n]o federal court has yet authoritatively addressed whether Title VII permits single-sex bathrooms or other intimate spaces in the workplace.” The EEOC also “recognize[s] the special ‘province and duty of the judicial department to say what the law is.’” Selina S. may file a request for reconsideration within thirty days or file a civil action in federal district court within ninety days.

Departure From Lusardi v. Department of the Army

The ruling departs from the EEOC’s 2015 decision in Lusardi v. Department of the Army, which found that denying a civilian Army employee access to a bathroom corresponding to their gender identity, requiring use of a single-occupancy restroom, and repeated misgendering could contribute to a hostile work environment.

In Driscoll, the majority said Lusardi misread “threadbare” evidence, explaining that the denial of access was not “motivated” by the complainant’s “transgender status.” Rather, “it was the Complainant’s sex, which was still immutably male, that was the sole reason his female coworkers did not want him in the women’s bathroom.”

Distinguishing Bostock v. Clayton County

The Driscoll ruling rests on the contention that sex is binary and cannot change, regardless of whether an individual identifies as another gender or transitions. The Supreme Court of the United States recognized that transgender people exist in its 2020 decision in Bostock v. Clayton County, which held that Title VII prohibits employers from making hiring or termination decisions based on sexual orientation or gender identity. The EEOC had previously interpreted Bostock more broadly, including in recently rescinded harassment guidance addressing bathroom usage. EEOC Chair Andrea Lucas has stated that Bostock remains good law.

However, the Driscoll majority distinguished the bathroom access issue from Bostock, noting that the Supreme Court expressly did not extend its ruling to bathrooms. The majority held that men and women are not “similarly situated” regarding intimate spaces due to “innate physical differences” and “vital privacy interests.” According to the majority, Bostock does not apply because the agency did not treat the transgender employee “differently than non-trans-identifying employees” as access was determined by biological sex, not transgender status.

Commissioner Kotagal’s Dissent

Commissioner Kalpana Kotagal, the lone Democratic commissioner, voted against the decision and issued a statement explaining her dissent. Commissioner Kotagal warned that “bathroom access is a basic term and condition of employment,” which raises concerns about interference with bathroom access constituting unlawful sex discrimination under Title VII. She further warned that the decision could lead to an “exodus of transgender employees from the federal government.”

Commissioner Kotagal stated the ruling “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 stated, “it suggests that transgender people do not exist. That belief is contradicted by science and is not grounded in the law.”

She also criticized the timing of the decision, noting that the same issue is pending before a federal court in Withrow v. United States,which is a proposed class action challenging the Trump administration’s policies prohibiting transgender employees’ bathroom access, proceeding in the U.S. District Court for the District of Columbia. The court recently granted a motion to extend time to file dispositive motions, delaying a potential authoritative decision on the issue. Commissioner Kotagal questioned why the EEOC did not wait for guidance from that court before issuing this decision.

Key Takeaways

The practical effect of Driscoll is limited at present. It applies only to federal agencies and does not bind federal courts. Courts may interpret Title VII differently under Bostock and find that denying bathroom access, particularly when tied to other conduct such as intentional misgendering, constitutes unlawful discrimination or harassment contributing to a hostile work environment. The Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo struck down Chevron deference could further limit the impact of the ruling and any ensuing guidance by the EEOC.

While multiple states protect bathroom access in state law, regulation, and/or guidance, several states have recently enacted transgender bathroom bans in state workplaces, creating the potential for divergent conclusions by state and federal courts based on their own interpretations of Title VII and other applicable laws. Employers may want to remain aware of all applicable local, state, and federal obligations as they navigate similar issues. Employers may also want to remain aware of all EEOC developments in light of this decision, including how the EEOC handles cases and investigates charges.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts