Last week, a federal district court in Texas granted summary judgment to the State of Texas in a lawsuit challenging portions of the Equal Employment Opportunity Commission’s workplace harassment guidance dealing with harassment on the basis of sexual orientation and gender identity. The 2021 guidance followed the Supreme Court’s Bostock decision, which held that Title VII’s prohibitions against sex discrimination extend to terminations based on sexual orientation or gender identity. 

In its new decision, the federal district court took a narrow reading of Bostock, concluding that the EEOC lacks the statutory authority to define sex beyond the male/female binary, and cannot require employers to accommodate employees' use of restrooms, dress in the workplace, or pronoun usage. The district court did not issue an injunction, but declared the EEOC guidance vacated, meaning that its validity outside of the Texas' court’s jurisdiction is unclear.

The Trump administration is unlikely to appeal this decision, which may decide the fate of the EEOC guidance. The current EEOC chair expressed her intent to withdraw portions of the guidance dealing with harassment on the basis of sexual orientation and gender identity, but the commission cannot act due to a lack of quorum following dismissal of its Democratic members. While some states specifically extend employment discrimination protections to LGBTQ+ persons, the EEOC will likely take the most restrictive reading of Bostock possible, limiting it to hiring, firing and promotion decisions.

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