The Equal Employment Opportunity Commission (EEOC) has taken a controversial step by moving to dismiss six cases it previously filed on behalf of workers alleging gender-identity discrimination. These cases, originating from Illinois, Alabama, New York, and California, face dismissal due to the EEOC's reliance on an executive order from the Trump administration. This order recognizes only two "immutable" sexes—male and female. The recent action marks a notable shift in the commission's interpretation of civil rights law, as it moves away from prior decisions that included protections for transgender employees under federal sex-discrimination law.
In 2015, a significant ruling determined that discrimination against transgender employees fell under federal sex-discrimination law. However, the EEOC's decision to align with the Trump-era executive order has stirred debate and concern. Notably, the commission updated its guidance in 2023 to classify certain actions—such as deliberately using incorrect pronouns or denying bathroom access aligned with gender identity—as forms of harassment. This update came as the commission received over 3,000 charges alleging discrimination based on sexual orientation or gender identity in 2023, reflecting a more than 36% increase from the previous year.
Andrea Lucas, the EEOC's acting chair, has expressed a clear intent to enforce the executive order. Lucas emphasized her commitment to "defending the biological and binary reality of sex and related rights." Her remarks underline the commission's stance:
"Biology is not bigotry. Biological sex is real, and it matters," – Andrea Lucas
"Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths – or to use language like pronouns that flow from these realities, even repeatedly." – Andrea Lucas
The decision to dismiss these cases highlights a significant departure from previous EEOC practices, where cases were generally dismissed based on merit rather than substance. This has raised eyebrows and drawn criticism from various quarters. Jocelyn Samuels, one of the EEOC commissioners who was recently dismissed, has been among those vocal about their concerns. Others have voiced apprehensions about the EEOC's trajectory, fearing it might undermine established protections for transgender individuals.
David Lopez, a former EEOC general counsel, criticized the commission's decision:
"It's like a complete abdication of responsibility." – David Lopez
He further expressed his dismay at what he perceives as a lack of enforcement on behalf of affected individuals:
"We're not going to enforce the law on their behalf" – David Lopez
This development occurs amid broader federal actions that appear to downplay references to transgender identity. Notably, the National Park Service recently removed all mentions of transgender individuals from its website for the Stonewall national monument in New York. Similarly, the Department of the US Army was previously found to have discriminated against Tamara Lusardi, a transgender employee. Lusardi faced discriminatory treatment after transitioning from male to female while on the job. She was prohibited from using the same bathroom as other female employees and was misgendered by her supervisors.
The EEOC's decision reflects a broader trend among federal agencies to revise their approach to gender identity issues. It highlights ongoing tensions between established legal interpretations and newer directives that challenge them. As these changes unfold, affected employees and advocacy groups continue to navigate an evolving landscape marked by legal, social, and political complexities.