EEOC Upholds Bathroom Exclusion for Trans-sexual Employee

Employers are struggling with how to handle trans-sexual employees who choose to use the bathroom of their gender choice, rather than their biological sex.  At least know the Equal Employment Opportunity Commission (EEOC) has made its position clear.  On February 26, 2026, the EEOC rejected a federal-sector employee’s request to use a female-designated bathroom after transitioning.  The EEOC concluded that Title VII allows federal employers “to maintain single-sex bathrooms and similar intimate spaces,” and permits them to “exclude employees, including trans-identifying employees, from opposite-sex facilities.”

The EEOC states that its opinion is consistent with the plain meaning of “sex” as understood by Congress at the time Title VII was enacted.  The opinion does note that “no federal court has yet authoritatively addressed” whether Title VII allows workplaces to maintain single-sex bathrooms and intimate spaces, or whether the statute mandates that employers allow transgender employees access to bathrooms and locker rooms “otherwise reserved for the opposite sex.”

Editor’s Note: While this case confirms the position of the EEOC, it does not control how a federal court would rule.  The Supreme Court in 2020 held that Title VII’s prohibition on sex discrimination emcompassed claims based on a person being gay or transgender, but the majority opinion stated that the justices “do not purport to address bathrooms, locker rooms, or anything else of the kind.”  

Because of the legal dilemma, employers might be advised to direct transgender employees to “neutral” bathrooms available for both male and female employees.  In recent times, many public establishments have  only bi-sex bathrooms that segregate the stalls with closed doors. 

This article is part of our June 2026 Newsletter. 

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