The EEOC Shifts Focus as It Relates to Gender Protections

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Patricia Tsipras

February 10, 2025

On January 28, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release addressing one of President Trump’s first executive orders (EO) – Executive Order 14166: Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.

The press release describes the EO as directing federal agencies to enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes, and to remove all statements, policies, regulations, forms, communications, or other internal and external messages promoting gender ideology.

The press release identified the following actions that Acting EEOC Chair Andrea Lucas has taken thus far in furtherance of the EO:

• Announced that one of her priorities is to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.
• Removed the EEOC’s “pronoun app,” which allowed an employee to opt to identify pronouns that were displayed both to internal and external parties with whom EEOC employees communicated.
• Ended the use of the “X” gender marker during the intake process for filing a charge of discrimination.
• Directed the modification of the charge of discrimination and related forms to remove “Mx.” from the list of prefix options.
• Commenced review of the content of EEOC’s “Know Your Rights” poster, which all covered employers are required by law to post in their workplaces.
• Removed materials promoting gender ideology on the EEOC’s internal and external websites and documents.

Certain gender identity-related documents cannot be removed or modified without a majority vote, and the EEOC currently has no quorum.  See our article here about the EEOC’s current lack of a quorum.  Those documents include the EEOC’s Enforcement Guidance on Harassment in the Workplace; the EEOC Strategic Plan 2022-2026; and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028.  Though Acting Chair Lucas cannot rescind portions of these guidance and plan documents, the EEOC press release confirms her opposition to the guidance that states that harassing conduct under Title VII includes “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity;” and that harassing conduct includes “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”

Employers:  If you are wondering how this shift in focus affects your workplace, it may not affect it much right now.  As we explained in a previous article, without a quorum of Commissioners, the EEOC cannot vote on rulemaking, issue new policies, or rescind guidance documents – which means that the EEOC’s existing rules, policies, and guidance remain in place.

In addition, the EEOC press release does not have the effect of law.  But court decisions do, and several court decisions are important here.  For example, in June 2024, the U.S. Supreme Court overturned Chevron and held that courts should exercise their independent judgment and need not defer to an agency interpretation of the law simply because a statute is ambiguous.  See our article here discussing that decision.  And, in June 2020, the U.S. Supreme Court ruled in Bostock that Title VII of the Civil Rights Act of 1964 protects gender identity and expression (though that decision did not address bathrooms).  See our article here discussing that decision.

Importantly, changes at the EEOC do not impact state law, which may contain protections for gender identity and expression.

Seek legal counsel to address your questions.  We can help.

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice.  Always consult an attorney with specific legal issues.