EEOC reveals plans to address gender identity discrimination in the workplace

EEOC aligns with new administration

The EEOC’s plans align with Executive Order (EO) 14166, signed on January 20. The EO, among other things, directs federal agencies to recognize men and women as having biologically distinct sexes. It instructs agencies to remove all statements, policies, regulations, forms, and communications discussing any concept of gender other than male and female. The EEOC’s press release echoes this same approach to gender, stating that the agency will “defend the biological and binary reality of sex and related rights.”

The EEOC also:

• Began reviewing the “Know Your Rights” poster, which all covered employers are required by law to post in their workplaces,
• Stopped using the “X” (i.e., non-binary) gender marker during the intake process when someone files a charge of discrimination,
• Removed “Mx.” (i.e., a gender-neutral prefix) from the list of prefix options on certain EEOC forms, and
• Removed materials addressing non-binary genders on the EEOC’s internal and external websites and documents, including webpages, statements, social media platforms, forms, trainings, and others.

These changes may suggest the agency will handle incoming claims of gender discrimination differently than they have for the past few years. The press release also signaled that the agency might place additional focus on bathrooms and other facilities.

Employers should keep in mind that many states have their own gender identity protections and privacy that employers must still follow, regardless of EEOC policy changes.

What happens next

The EEOC operates by a majority vote in certain situations. This means that Lucas alone cannot remove or modify some gender identity-related documents subject to the president’s directives in the executive order. This includes, for example, the EEOC’s Enforcement Guidance on Harassment in the Workplace that was issued by a 3-2 vote in 2024.

Changes to items like these would require a vote from at least three members of the EEOC, which is usually made up of five commissioners. Currently, the group is down to two commissioners, meaning the EEOC is in a holding pattern when it comes to removing or modifying documents, issuing rules, providing legal guidance to employers, or pursuing litigation.

In addition to conflicting guidance, this uncertainty means that employers can likely expect delays if they need to reach out to the EEOC for assistance on employment matters.

Key to remember: An EEOC press release reveals a narrower approach to gender identity, shedding some light on how the agency might respond to discrimination complaints in the future. For now, employers may not need to take any action but should be aware of the conflicting guidance at the federal and state levels.