Transgender Worker Bathroom Access Addressed by EEOC

On February 26, 2026, the Equal Employment Opportunity Commission (EEOC) ruled that federal employers can lawfully block transgender workers from using bathrooms and changing facilities that align with their gender identity.  The EEOC majority concluded that Title VII allows federal agency employers “to maintain single-sex bathrooms and similar intimate spaces,” and permits them to “exclude employees, including trans-identifying employees, to opposite-sex facilities.”  

EEOC Chair Andrea Lucas issued a statement on the same day stating:  “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 long-standing civil rights principles:  that similarly situated employees must be treated equally.”  The opinion noted that: “No federal court has yet authoritatively addressed” either 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.”  

The EEOC majority also defined “sex” as referring to “an individual’s immutable biological classification as either male or female.”  Further, according to the majority, men and women are “not similarly situated when it comes to using bathrooms and other intimate spaces” at work, “because of their innate physical differences.”  The majority pointed to what they called bodily privacy interests.  

Selina S. v. Driscoll, Appeal No. 2025003976 (U.S. Equal Employment Opportunity Commission, 2/26/26.)

Editor’s Note:  While this case applies Title VII as interpreted by the EEOC, the court system will make its own determination of what Title VII of the Civil Rights Act requires.  Therefore, there is legal risk following the EEOC ruling in this case.  One approach is to have either “single-sex” bathrooms or more private places for transgender workers to use.

This article is part of our April 2026 Newsletter. 

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