Ultimately, the district court interpreted Bostock narrowly, stating: "Bostock decided only whether firing an employee for being transgender constituted Title VII 'sex'discrimination under its but-for causation test."
On May 15, 2025, in Texas v. EEOC, 2:24-cv-00173-Z (N.D. Tex.), a federal district court vacated certain portions of the Enforcement Guidance on Harassment in the Workplace issued in 2024 by the Equal Employment Opportunity Commission (EEOC) relating to sexual orientation and gender identity. However, for the reasons discussed below, this decision does not mean that employees are without legal protection from harassment based on gender identity or sexual orientation.
Title VII and Bostock
In Bostock v. Clayton County, 590 U.S. 644 (2020), the U.S. Supreme Court held that Title VII's prohibition on sex-based discrimination also prohibits discrimination on the basis of an individual's sexual orientation or gender identity. Notably, the Supreme Court limited its holding to discharge decisions. The Supreme Court did not rule, one way or other, on Bostock's applicationto workplace harassment, though several federal appellate and district courts have held that Bostock prohibits harassment based on sexual orientation and gender identity.
2024 EEOC Enforcement Guidance
On April 29, 2024, the EEOC issued its updated Enforcement Guidance on Harassment in the Workplace. Relying on Bostock and several federal court decisions interpreting that case, the EEOC asserted that Title VII prohibits harassment based on sexual orientation and gender identity.
The guidance included several examples of unlawful harassing conduct based on sexual orientation or gender identity, including: epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual's sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person's sex; repeated and intentional use of a name or pronoun inconsistent with the individual's known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual's gender identity.
District Court Vacates Portions of the Guidance
The state of Texas and the Heritage Foundation filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging the guidance, and on May 15, 2025, the court vacated certain sexual orientation and gender identity-related portions of the guidance. The district court held that the guidance "contravenes Title VII" by (1) "expanding the definition of 'sex' beyond the biological binary" and (2) "requiring employers to accommodate an employee's dress, bathroom, or pronoun requests."
With respect to the district court's holding regarding the definition of "sex," it pointed out that in Bostock the Supreme Court assumed, without holding, that "sex" referred only to biological distinctions between male and female. And with respect to its holding regarding accommodation of dress, bathroom or pronoun requests, the district court pointed out that the Supreme Court in Bostock stated that it did "not purport to address bathrooms, locker rooms, or anything else of the kind."
Ultimately, the district court interpreted Bostock narrowly, stating: "Bostock decided only whether firing an employee for being transgender constituted Title VII 'sex'discrimination under its but-for causation test." Thus, the district court held, "Title VII does not bar workplace employment policies that protect the inherent differences between men and women."
Executive Branch Actions
The district court's decision is consistent with recent executive branch actions by the Trump administration. For example, Executive Order 14168, "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government," states that it is the "policy of the United States to recognize two sexes, male and female" and directs the EEOC to rescind the guidance. Similarly, a May 19, 2025, Department of Justice (DOJ) memorandum announces the DOJ's intent to use the False Claims Act to enforce the administration's policies regarding "diversity, equity and inclusion" against recipients of federal funds, and specifically calls out entities that "allow[] men to intrude into women's bathrooms."
What This Means for Employers
The district court's decision vacating portions of the guidance is yet another addition to a complex and uncertain legal landscape regarding legal protections against discrimination on the basis of gender identity and sexual orientation that is fraught with risk for employers. Although the decision is consistent with the current administration's policy position, it appears at this time to be an outlier among the courts who ultimately will decide employees' Title VII claims—as noted above, several federal appellate and district courts have interpreted Bostock more expansively to broadly prohibit workplace discrimination and harassment based on an individual's sexual orientation or gender identity. In addition, numerous states and localities, through legislation or court decisions, have broad legal protections against sexual orientation or gender identity discrimination and harassment.
Accordingly, employers who assume that employees are protected only from being fired, but not other forms of discrimination or harassment, based on their sexual orientation or gender identity, likely are construing their employees' legal rights too narrowly.
So, what are employers to do? Now is a good time for employers to review their policies and practices that implicate employees' sexual orientation or gender identity.
Some specific areas on which employers should consider focusing:
Anti-Harassment Policies and Training
Employers still may wish to prohibit harassment based on sexual orientation or gender identity. Even if such harassment is not prohibited, it does not mean that it is protected. An "epithet" based on sexual orientation or gender identity is not appropriate, even if it is not unlawful.
Dress Codes
Even if an employer is not required to allow employees to dress in a way that conforms with their gender identity, the law does not prevent this.
Pronoun Use
There may be religious reasons why an employee may object to using the preferred pronouns of an employee who identifies as nonbinary or transgender. Where this clash of rights occurs, avoid terms like "misgendering." Instead, accommodate the employee's religious objection by asking him or her to the use the other employee's name and to avoid using any pronouns altogether. The key is that employees respect each other.
Bathrooms
We cannot avoid the use of bathrooms in the same way we can avoid the use of pronouns in individual cases. Where feasible, employers should consider having gender-neutral bathrooms open to all employees. Where this is not feasible, a privileged risk analysis is warranted.
For More Information
If you have any questions about this Alert or have specific questions and concerns related to your operations, please contact Jonathan A. Segal, Christopher D. Durham, Anshul S. Agrawal, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
