EEOC issues decision allowing federal agencies to restrict bathroom use for trans workers

The Equal Employment Opportunity Commission (EEOC) issued a decision in a 2-1 vote on Feb. 26 about which bathrooms transgender federal employees can access.

Catch up. The decision overturned the 2015 decision in Lusardi v. Department of the Army that allowed federal employees to access bathrooms that matched their gender identity. Now, transgender federal workers can only use the bathroom that corresponds with their gender at birth.

EEOC Chair Andrea Lucas argued that the decision was made in accordance with Title VII of the Civil Rights Act of 1964, and that the law “permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite-sex facilities.”

Lucas has targeted the trans community several times since she joined the EEOC. In 2025, she removed the agency’s pronoun identifier option and gender marker “X” in support of Executive Order 14168, which limited gender to two sexes, and paused LGBTQ+ harassment investigations. The EEOC also recently rescinded 2024 workplace harassment guidance, HR Brew reported previously.

Kalpana Kotagal, the EEOC’s only Democrat, disagreed with 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. “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 trans employees were protected under the Civil Rights Act, but specifically did not rule on rules for bathroom use.

Private employers are paying attention. Employers should familiarize themselves with local laws because some states, such as California, allow workers to use the bathroom that corresponds with their gender identity.

“There’s a tension between the likely enforcement position of the EEOC and what some states like New York and California depict,” Jonathan Segal, an employment lawyer at Duane Morris, told HR Brew. He said he’s seen employers that have “a bathroom for women and a bathroom for men, and then they have an all gender bathroom.”

While this dangerous bathroom debate has come up in the public sector, it largely hasn’t with private employers. “They’re addressing issues if or when they arise,” Segel said, adding that employers and workers typically come to solutions “in good faith.”

While employers have largely stayed out of the discourse, Segal said that the private sector often takes its cues from the government.

“Technically, these decisions are irrelevant because it only applies to the public sector,” Segal said. “Practically, it’s very relevant because it’s highly unlikely that the two members of the EOC that ruled as they did on the public sector, are going to rule differently on the private sector.”