WASHINGTON — The Equal Employment Opportunity Commission voted 2-1 on Feb. 26 to allow federal agencies to restrict transgender employees to bathrooms corresponding with their sex assigned at birth, overturning approximately a decade of workplace protections, according to a report from HR Brew.
HR Brew, a newsletter covering human resources news, reported that the ruling reverses the 2015 decision in Lusardi v. Department of the Army, which had permitted federal workers to use facilities matching their gender identity. Under the new interpretation of Title VII of the Civil Rights Act of 1964, agencies may now exclude transgender employees from opposite-sex facilities.
EEOC Chair Andrea Lucas authored the majority opinion, arguing the decision aligns with the law. Lucas has taken multiple actions targeting the transgender community since joining the commission.
In 2025, she removed the agency’s pronoun identifier option and gender marker “X” in support of Executive Order 14168, which limits gender to two sexes. She also paused LGBTQ+ harassment investigations, and the EEOC recently rescinded 2024 workplace harassment guidance, HR Brew reported.
Kalpana Kotagal, the EEOC’s only Democrat, strongly dissented from the decision.
“The decision 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,” Kotagal wrote in her dissent, as reported by HR Brew. “Worse, it suggests that transgender people do not exist. That belief is contradicted by science and is not grounded in the law.”
In 2020, the Supreme Court ruled that transgender employees are protected under the Civil Rights Act, but the high court specifically declined to address bathroom access rules, leaving room for agency interpretation.
Jonathan Segal, an employment lawyer at Duane Morris, told HR Brew that private employers are watching the development closely. He noted that while the decision technically applies only to the public sector, it carries practical weight for private industry.
“Technically, these decisions are irrelevant because it only applies to the public sector,” Segal told HR Brew. “Practically, it’s very relevant because it’s highly unlikely that the two members of the EEOC that ruled as they did on the public sector are going to rule differently on the private sector.”
Segal advised employers to familiarize themselves with local laws, noting that some states such as California already allow workers to use bathrooms corresponding with their gender identity. He described a “tension between the likely enforcement position of the EEOC and what some states like New York and California depict.”
Some workplaces have adopted all-gender bathrooms as a compromise solution when issues arise, he added.
The bathroom access debate has largely remained in the public sector, with private employers addressing issues “if or when they arise,” Segal said. He observed that employers and workers typically come to solutions “in good faith.”
The decision marks the latest shift in federal policy under the current administration and signals potential changes ahead for private sector workplace protections. The ruling has drawn attention from employment law experts and advocates who view it as part of a broader pattern of rolling back LGBTQ+ protections at the federal level.
Lucas’s previous actions, including removing pronoun options and pausing harassment investigations, have drawn criticism from advocacy groups and the commission’s sole Democratic member. Kotagal’s dissent emphasized what she described as the decision’s departure from scientific understanding and legal precedent.
The EEOC’s reversal represents a significant change from the 2015 Lusardi standard that had guided federal workplace policy for about a decade. Federal agencies must now determine how to implement the new guidelines while navigating potential conflicts with state laws that provide broader protections.
Employment lawyers expect the decision to face legal challenges and scrutiny from courts, given the unresolved questions left by the 2020 Supreme Court ruling. The commission’s split vote along party lines highlights the political divide over transgender rights in federal policy.
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