EEOC Rescinds 2024 Harassment Guidance Addressing Gender Identity Under Title VII

Highlights

• The Equal Employment Opportunity Commission (EEOC) voted on January 22, 2026, to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. The action removed language stating that repeated, intentional misgendering and denial of restroom access consistent with an employee's gender identity are potential forms of unlawful harassment under Title VII.
• The rescission follows the Trump Administration's January 20, 2025, Executive Order 14168, directing agencies to remove policies that "promote gender ideology," along with a May 2025 Texas federal district court decision challenging portions of the 2024 harassment guidance.
• The rescission does not amend, alter or otherwise impact federal, state and local fair employment practices laws or the U.S. Supreme Court's holding in Bostock v. Clayton County that discrimination based on sexual orientation or gender identity violates Title VII.

The Equal Employment Opportunity Commission (EEOC) voted on January 22, 2026, to rescind its 2024 Enforcement Guidance on Harassment in the Workplace (2024 Guidance). The decision to roll back the Biden-era guidance, including parts of the guidance discussing LGBTQ+ protections and gender identity, is in line with EEOC Chair Andrea Lucas' priorities to shift federal policy to a binary interpretation of "sex" as articulated in President Donald Trump's January 20, 2025, Executive Order (EO) 14168. The rescission took effect immediately. No replacement guidance has been announced. Notwithstanding the rescission, the decision to rescind the guidance has no impact on federal, state and local fair employment practices laws, nor the protections under Bostock v. Clayton County, holding that Title VII protects gay and transgender workers from workplace discrimination and harassment. For more information on the U.S. Supreme Court's decision in Bostock, see Holland & Knight's previous alert, "Supreme Court Extends Title VII Protections to Sexual Orientation and Transgender Status," June 15, 2020.

Background: The EEOC's 2024 Guidance

The EEOC's 2024 Guidance represented the agency's most comprehensive update in decades, consolidating long-standing principles under federal antidiscrimination law while expanding clarity on modern workplace issues. The nearly 200‑page document provided detailed explanations of what constitutes unlawful harassment based on protected characteristics – including race, sex, religion, disability, age, sexual orientation and gender identity – and offered more than 70 practical examples to help employers recognize, prevent and address misconduct. The guidance also integrated recent case law, including the Supreme Court's Bostock decision, to explain how sexual orientation and gender identity-based conduct could give rise to actionable harassment claims. For many employers, the 2024 Guidance served as both a compliance road map and training tool, offering concrete scenarios that illustrated how routine interactions, missteps in communication or workplace policies could evolve into legal risk when not properly managed.

What Notable Language Was Rescinded?

The EEOC has rescinded the entire 2024 Enforcement Guidance on Harassment in the Workplace and, in so doing, eliminated the agency's prior framework on what constitutes gender identity-based harassment. This guidance had been the EEOC's principal vehicle for offering direction on gender identity-based discrimination under Title VII following Bostock, including treating repeated and intentional misgendering as actionable harassment, and identifying denial of restroom access aligned with an employee's gender identity as sex‑based harassment. All of these interpretations have now been withdrawn. These provisions were already destabilized after the U.S. District Court for the Northern District of Texas held in Texas v. Equal Emp. Opportunity Comm'n, 785 F. Supp. 3d 170, 176 (N.D. Tex. 2025), that the EEOC had exceeded its statutory authority, prompting the agency to "grey out" the vacated portions online while awaiting further direction.

What Prompted the Rescission?

A combination of legal developments, administrative changes and explicit executive branch directives set the stage for the EEOC's decision to rescind the 2024 Guidance. Since taking office, Chair Lucas has promised to "defend the biological and binary reality of sex and related rights, including women's rights to single-sex spaces at work." This pronouncement came at the heels of the Trump Administration's EO 14168, which adopts a federal policy recognizing only two immutable biological sexes and directs agencies to interpret federal antidiscrimination statutes using biological definitions rather than gender identity. The EO requires agencies to remove or revise any materials that "promote gender ideology," including guidance documents, forms and training materials, and imposes tight implementation timelines. Importantly, the EO explicitly identifies the EEOC's April 2024 Harassment Guidance as inconsistent with its directives and instructs the agency to rescind it to the extent of that inconsistency. To be clear, the EO does not and cannot alter Title VII or the Supreme Court's decision in Bostock. But its sweeping directives placed immediate political and administrative pressure on civil rights agencies, including the EEOC, to narrow their interpretive materials.

In May 2025, a Texas federal district court in Texas v. Equal Emp. Opportunity Comm'n vacated the sections of the guidance addressing gender identity. That ruling undercut a key component of the agency's framework. At the same time, the EEOC's leadership composition shifted. Under the Trump Administration, EEOC leadership consistently articulated a narrower view of Title VII's protections, maintaining that Bostock did not extend to workplace practices such as recognizing gender identity for pronoun purposes or providing access to sex‑segregated facilities. With a Republican majority in place, the agency withdrew the guidance despite a forceful dissent from Commissioner Kalpana Kotagal, who emphasized that employers rely on such guidance to understand their obligations and rescission does not eliminate the agency's enforcement authority.

What the Rescission Does Not Change

Despite the rescission of the 2024 Guidance, several fundamentals remain unchanged.

• Federal Law: The rescission does not amend, alter or otherwise impact the federal statutes, including Title VII, and the Supreme Court's holding in Bostock that discrimination based on sexual orientation or gender identity is discrimination "because of sex" in violation of Title VII. Courts and the EEOC, including in federal-sector decisions, have recognized that harassment claims premised on sexual orientation or gender identity are cognizable under Title VII when sufficiently severe or pervasive.
• State and Local Laws: State and local fair employment practice laws continue to apply independently and may provide broader protection than federal law. The rescission of the 2024 Guidance does not alter those statutes, their enforcement or the manner in which state and local fair employment agencies interpret state and local laws.

Practical Implications for Employers

The immediate effect is greater uncertainty around how the current EEOC will treat enforcement in areas previously addressed by examples in the 2024 Guidance, especially with respect to pronouns and sex-segregated facilities. Even so, the agency has stated it will continue to litigate harassment cases, and courts will apply existing Title VII standards informed by Bostock and subsequent case law.

Employers operating across multiple jurisdictions face a potential patchwork of obligations due to divergent court rulings and differing state and local fair employment practice requirements that may be more protective than the current federal posture. Without the now-rescinded examples, internal policy application – particularly involving pronouns, bathroom and facility access, and religious accommodation interactions – will require careful, fact-specific assessments anchored in Title VII's hostile work environment and disparate treatment frameworks.

The rescission of the 2024 Guidance offers employers far less clarity of their obligations with respect to pronoun use, restroom and changing-facility access (including single-occupancy options), dress and grooming codes, and intersections with religious accommodation.

Recommended Employer Actions

• Policy and Training Refresh: Review anti-harassment policies and training to ensure they reflect current federal standards and applicable state and local standards, while maintaining clear prohibitions against harassment based on sex, including sexual orientation and gender identity, consistent with Bostock.
• Complaint Handling and Investigations: Reinforce reporting channels and investigation protocols, emphasizing prompt, thorough and impartial responses to complaints and tailoring procedures to your workforce.
• Case-by-Case Assessments: Evaluate pronoun, restroom/facility access and related accommodation issues based on the totality of circumstances, applicable case law and any intersecting rights (e.g., religious accommodation), documenting individualized analyses.
• Multi-Jurisdiction Compliance: Map applicable state and local fair employment practices laws and update handbooks, manager guides and training to address more protective requirements where they exist.