Accessibility Tools

Skip to main content

EEOC Upholds Bathroom Exclusion for Trans-sexual Employee

Written on .

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. 

View the newsletter online

Download the newsletter as a PDF

Get Email Updates

Receive newsletters and alerts directly in your email inbox. Sign up below.
promo graphic, Responding to a Plaintiff Attorney’s Demand Letter
It is quite common for plaintiff’s attorneys to write a letter to a company, popularly called a “demand letter,” claiming the employer has…
scales of justic and gavel
On June 9, 2026, the U.S. House of Representatives passed the Faster Labor Contracts Act (FLCA), a concept long supported by organized labo…
gavel, court room table
In a Department of Justice (DOJ) Memo issued on June 9, 2026, the DOJ has re-evaluated the Equal Employment Opportunity Commission’s (EEOC)…
woman symbol lineup
The U.S. Supreme Court has upheld the laws of two states reserving female teams for biological females, finding such laws do not violate ei…
stack of reports
A vote on July 21, 2026, was 2-1 by the EEOC Commissions to end workforce demographic data collections.  A notice of rulemaking must appear…
pile of cash
Individuals and corporations can begin making contributions to tax-advantaged investment accounts for children starting July 4, 2026, and s…