In July of this year, a Texas federal district court judge denied the state of Texas' request to vacate the Equal Employment Opportunity Commission's (EEOC) most recent guidance relating to gender identity discrimination. In doing so, the federal court held that the state could not bring the challenge in a previously filed lawsuit regarding prior EEOC guidance but, instead, must file a new lawsuit.
The state of Texas first took issue with the EEOC's 2021 guidance, which required bathroom, dress code, and pronoun accommodations for employees based on gender identity. Texas filed suit against the EEOC in the United States District Court for the Northern District of Texas, requesting the court vacate the 2021 guidance (2021 Lawsuit). On October 1, 2022, the court vacated the 2021 guidance and issued a declaratory judgment that the guidance was unlawful on several grounds, holding that it: (1) was contrary to law because Title VII, even after the Supreme Court's decision in Bostock v. Clayton County, does not require employers to provide accommodations regarding bathrooms, dress codes, or pronoun usage based on gender identity; and (2) unlawfully extended Bostock's "non-discrimination holding" beyond statutory limits imposed by Congress. The EEOC did not appeal the district court's judgment.
The EEOC then issued new guidance in 2024. The 2024 guidance provides that Title VII mandates that all covered employers, including states, permit employees to use preferred pronouns; allow transgender individuals to use the shower, locker room, or restroom that corresponds to their gender identity; and permit employees to adhere to the dress code that applies to the gender with which they identify. The state of Texas again took issue with the EEOC's guidance on gender discrimination and filed a motion for further necessary or proper relief against the EEOC in the closed 2021 Lawsuit, requesting the court also vacate the 2024 guidance. Texas argued the 2024 guidance violated the district court's declaratory judgment in the 2021 Lawsuit under the Declaratory Judgment Act, and the court had the authority to order relief to enforce that judgment.
On July 17, 2024, U.S. District Judge Matthew J. Kacsmaryk disagreed with the state. The court denied the state's motion but noted that the court "takes no position on the lawfulness of [the 2024 guidance]." The order recognizes only that the state's new challenge is against a "new and distinct" EEOC document that was issued after the court's final judgment and the close of the 2021 Lawsuit and thus "warrants a new complaint." In other words, the court declined to opine on the question of whether the 2024 guidance should be vacated, holding only that the state of Texas must file a new complaint to challenge the validity of the 2024 guidance.
As a result, employers—specifically Texas employers—should keep an eye on any future challenges to the EEOC's gender identity guidance. It is likely that Texas will file a new complaint to challenge the 2024 guidance.
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