The Biden administration unconstitutionally attempted to rewrite federal law to effectively force companies employing more than 14 people to allow men who claim to be transgender in women’s restrooms and to use employees’ preferred pronouns, a federal judge ruled Thursday.
Judge Matthew Kacsmaryk, an appointee of President Donald Trump, threw out a 2024 “guidance” document published by the Equal Employment Opportunity Commission. The EEOC document warned that employers who “misgendered” employees or restricted bathrooms to men and women could face EEOC investigations for violating Title VII of the Civil Rights Act of 1964, but the document stated that it did not purport to have “the force and effect of law.”
Title VII protects employees from discrimination at state and federal governments and at companies employing 15 or more people.
Kacsmaryk ruled that the document did effectively rewrite federal civil rights law, and he threw out the sections of the document that mandated transgender policies on employers.
“The Biden EEOC tried to compel businesses—and the American people—to deny basic biological truth,” Kevin Roberts, president of The Heritage Foundation, which sued to block the guidance, said Friday in response to the ruling. “Thanks to the great state of Texas and the work of my Heritage colleagues, a federal judge said: ‘Not so fast!’”
“This ruling is more than a legal victory,” Roberts added. “It’s a cultural one. It says no—you don’t have to surrender common sense at the altar of leftist ideology. You don’t have to pretend men are women. And you don’t have to lie to keep your job.”
He framed Heritage’s decision to sue as a model for the conservative movement.
“Heritage is doing exactly what the conservative movement needs to do: stop apologizing, start suing, and take back institutions,” Roberts concluded.
“Today is a great day for the rule of law, common sense, and women and girls across the country,” Dan Mauler, general counsel and secretary at Heritage, said. “We applaud Judge Kacsmaryk’s prudent decision to overturn Biden-era regulations that forced female employees to share spaces with men—something the vast majority of Americans reject as fundamentally wrong.”
“Heritage successfully partnered with Texas to fight the Biden administration’s illegal weaponization of civil rights law to push leftist social engineering,” Mauler added. “[Former President Joe] Biden’s EEOC attempted to force all businesses and state governments to permit biological men into women-only spaces, including restrooms and locker rooms. Even worse, the Biden EEOC tried to force employees to lie about fundamental, undeniable truth by requiring employees use preferred pronouns over biological fact.”
The Heritage Foundation employs about 300 people, and as such falls under the purview of Title VII.
Why Was a Ruling Necessary?
Texas and Heritage sued in August 2024, claiming the transgender guidance violated the Administrative Procedure Act by contradicting the law, exceeding EEOC’s authority, applying arbitrary and capricious rules, and failing to publish the rule in the Federal Register.
Texas and Heritage asked the court to vacate the guidance and issue a permanent injunction prohibiting the EEOC from implementing it. Kacsmaryk vacated the guidance, but declined to issue an injunction.
While Trump issued an executive order directing the EEOC to immediately rescind the guidance, then-Commissioners Charlotte Burrows and Jocelyn Samuels, joined by current Commissioner and Kalpana Kotagal, issued a statement standing by the document. Trump removed Burrows and Samuels from office, and until they are replaced, EEOC lacks a quorum to rescind the guidance.
Misreading Bostock
The EEOC claimed not to be rewriting the law in the 2024 guidance. Rather, it cited Bostock v. Clayton County (2020), in which the Supreme Court ruled that firing a person over his or her sexual orientation or gender identity would violate Title VII.
The 2024 guidance falsely suggested that Bostock had redefined “sex” in Title VII to include “gender identity” and “sexual orientation,” and therefore stated that employers might violate Title VII by refusing to implement transgender preferences.
Not only did Justice Neil Gorsuch not redefine “sex” in the majority opinion in Bostock, he explicitly noted that the Supreme Court did “not purport to address bathrooms, locker rooms, or anything else of the kind.”
Despite the EEOC document claiming that it was not making law, the document also states, “The EEOC must sometimes take a position on whether an alleged type of conduct violates Title VII even in the absence of binding Supreme Court precedent.”
Kacsmaryk noted this quote when explaining his order.
“Thus, the enforcement guidance itself acknowledges that it more than ‘summarizes’ Title VII case law,” he wrote.
Transgender Rewriting of the Law
Kacsmaryk noted that the guidance attempted to rewrite the law.
“Notably, the Guidance uses quotation marks around ‘pregnancy, childbirth, and related medical conditions’—but not ‘sexual orientation’ or ‘gender identity,’” the judge wrote. He added, “neither the plain text of Title VII, nor Supreme Court precedent, defines Title VII ‘sex’ this broadly.”
Furthermore, “Congress knows how to amend Title VII to include needed accommodations.”
When the Supreme Court ruled in 1976 that “pregnancy, childbirth, or related medical conditions” did not fall under the category of discrimination on the basis of “sex” in Title VII, Congress responded by passing the Pregnancy Discrimination Act of 1978.
Previous Transgender Guidance Struck Down
The 2024 guidance came three years after then-EEOC Chairwoman Charlotte Burrows issued a “technical assistance” document stating much the same things.
For instance, the 2021 guidance said, “Employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.” When Texas challenged the 2021 guidance, the same federal court vacated the guidance as unlawful in October 2022.
Kacsmaryk noted the overturning of this previous guidance in his ruling.
