EEOC implements a federal workplaces trans exclusion policy affecting "intimate spaces”

The new ruling, which wasn’t covered widely, quietly allows trans exclusion in federal workplaces.

By Artemis T. Douglas

Tthe Equal Employment Opportunity Commission in the U.S. (EEOC) issued an appellate decision permitting discrimination against trans people through sex segregation in the workplace. 

A 2-1 decision, trans people are now effectively banned from the correct bathrooms and locker rooms, as their federal employers are allowed to force them to go into the wrong ones, or not use them at all.

It is important to note that this largely applies only to federal agencies and workplaces. The EEOC’s decision doesn’t affect private employers directly. 

The EEOC press release includes language to this effect.

“As with all of the EEOC’s appellate decisions adjudicating federal agency employment discrimination complaints, this decision applies only to federal agencies subject to the EEOC’s administrative complaint process for federal employees. It does not apply to private sector employers, nor does it bind any federal court.”

The EEOC’s press release also uses language that feels at-home in British gender conservative circles, including the use of “trans-identifying” to make trans people seem less legitimate. 

“The EEOC adjudicates federal employment discrimination appeals. In this appeal, a trans-identifying federal employee claimed an agency’s policy of designating bathrooms based on sex as opposed to “gender identity,” pursuant to Executive Order 14168, constituted unlawful sex-based discrimination in violation of Title VII.”

This ruling can be seen as a knock-on consequence of mainstream trans advocacy distancing itself from the ability of trans people who choose HRT and/or further medical transition to physically change their sex.

Like the Skrmetti ruling from the Supreme Court, the EEOC held that “gender identity” is not a protected characteristic in the law, and falsely assumes the immutability of sex– including “biological sex”.

EEOC Chair Andrea Lucas is cited in the press release as stating that “Biology is not bigotry”.

“Today’s opinion is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally.” 

“When it comes to bathrooms, male and female employees are not similarly situated. Biology is not bigotry.”

Of course, transsexuals– those trans people that choose to pursue a medical transition to include HRT, do change their sex, including their biological sex. 

In addition, the EEOC Chair’s stance that men and women are not similarly situated has ominous legal implications.

If “females” are not seen as equal under the law to “males”, this interpretation of civil rights law could easily expand to cis women who claim discrimination for other reasons.

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Historically, women who were pregnant– if they were lucky enough to be employed in the first place– would be fired once it was found out that they were pregnant, and it was legal.

This still happens, but it’s supposed to be illegal.

In other words, by claiming a bioessentialist notion of “male and female” in an appellate decision, the EEOC undermines the very foundations of equality and integration it was set up to ensure. 

Trans people are worth more than merely being canaries in the coal mine, as the analogy goes. 

However, it is illuminating that the EEOC’s decision to ban trans people also undermines broader aims of equality for cis people.