The EEOC just voted 2–1 to hold that federal agencies may restrict bathrooms and other “intimate spaces” based on biological sex — and may exclude transgender employees from facilities consistent with their gender identity.
“Biology is not bigotry,” says EEOC Chair Andrea Lucas.
Except according to the Supreme Court, it very much is.
In Bostock v. Clayton County, SCOTUS held that discrimination against transgender employees is discrimination “because of sex” under Title VII. That wasn’t a narrow ruling about terminations. It was a statutory interpretation decision. The Court said that when an employer treats someone differently for being transgender, sex is necessarily part of the decision.
You don’t get to separate “biology” from the analysis. The Court already did the textual math.
Commissioner Kalpana Kotagal dissented, warning that 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.”
The majority argues there’s no binding precedent on bathrooms specifically, so it returned to the “ordinary meaning” of sex in 1964.
But once the Supreme Court interprets a statute, agencies don’t get to rewind the clock and start over. You may disagree with Bostock. But it governs.
A few important guardrails:
• This applies only to federal agencies.
• It does NOT apply to private employers.
• It does NOT bind federal courts.
• It does NOT overrule Bostock.
What it does do is create tension with Supreme Court precedent — and invite litigation.
It also carries a very real human risk.
The practical impact of policies like this isn’t abstract. It’s harm to transgender workers — exclusion from basic workplace facilities, increased exposure to harassment, and the kind of stigmatization that courts have already recognized as unlawful. When access to a restroom becomes a legal battleground, the people caught in the middle are employees just trying to do their jobs.
Which raises the practical question: was this a widespread workplace problem that needed solving?
Most employers have managed restroom access pragmatically for years, balancing inclusion and privacy without operational chaos. Employment law should address real harms — harassment, retaliation, unequal pay — not create new ones.
Employers should focus on minimizing liability by continuing to adopt policies that treat transgender employees consistent with their gender identity while protecting privacy for everyone. It’s the legal thing to do. Just ask the Supreme Court.
