Texas Federal Court Vacates Gender Identity-Related Sections of the EEOC’s 2024 Harassment Guidance but Other Sections Remain Effective in Advance of the June 24, 2025 EEO-1 Reporting Deadline

On May 15, 2025, a federal district court in Texas vacated sections of the Equal Employment Opportunity Commission’s (EEOC or the “Commission”) 2024 Enforcement Guidance on Harassment in the Workplace (the “2024 Enforcement Guidance”) related to sexual orientation and gender identity, reasoning that the 2024 Enforcement Guidance “contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary” and “defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.”[1] The EEOC has since clarified on its website that the court’s vacatur applies nationwide, extending its implications beyond the parties in the case and clarifying that the vacated portions can no longer be enforced by the Commission. To “assist the public following the federal court decision,”[2]  the Commission has labeled and shaded the portions of the 2024 Enforcement Guidance vacated by the court.

Five days later, on May 20, 2025, the EEOC opened the 2024 EEO-1 Component 1 Data Collection portal using an updated EEO-1 report that no longer includes an option for employers to voluntarily report employees who self-identify as “non-binary.” Employers’ choice of gender selection now only includes male or female. Data submissions are due June 24, 2025.

Despite these developments, the EEOC has not formally rescinded its  2024 Enforcement Guidance, meaning the portions of the guidance that were not vacated by the court remain in effect and continue to serve as the operative standards for addressing workplace harassment under federal law. The EEOC cannot vote on rulemaking, issue new policies, or rescind guidance because it currently has only two commissioners, while three are needed for the quorum necessary for the EEOC to adopt the administration’s agenda on employment law and related gender identity issues. If President Trump’s nominee Brittany Bull Panuccio is confirmed to assume the now-vacant seat on the EEOC, the EEOC will have a quorum and the EEOC Acting Chair Andrea Lucas has indicated addressing this issue is one of her priorities.

Case Summary

In State of Texas and the Heritage Foundation v. EEOC, Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas ruled that the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace exceeded the authority of the 1964 Civil Rights Act and Supreme Court precedent established by Bostock v. Clayton County, where the Court ruled that Title VII of the Civil Rights Act of 1964’s (“Title VII”) prohibition against employment discrimination based on sex includes discrimination based on sexual orientation or gender identity.[3]

Following the Bostock decision, the EEOC issued guidance in 2021 that prohibited employers from denying employees access to bathrooms, locker rooms, or showers corresponding with their gender identity. The State of Texas then successfully challenged the guidance in State of Texas v. EEOC[4] and, together with the Heritage Foundation, has again challenged the guidance now.

In vacating the gender-related portions of the 2024 Enforcement Guidance, the court agreed with the plaintiffs’ position that the guidance conflicts with President Trump’s Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” While the court acknowledged that Bostock prohibits employers from firing employees based on their sexual orientation or gender, the court emphasized the focus of Bostock is on biological sex and distinguishes the act of firing employees because of their gender identity and sexual orientation from other employment practices. Specifically, the court explained “Title VII remains rooted in the biological understanding of sex,”[5] and “it does not reach employment practices which merely recognize and protect the ‘genuine’ differences between men and women,”[6] including the practice of navigating accommodation requests from transgender employees.

Accordingly, the Court granted summary judgement to the plaintiffs and vacated the following sections of the 2024 Enforcement Guidance[7]:

• All language defining “sex” in Title VII to include “sexual orientation” and “gender identity”;
• Section II(A)(5)(e), harassment based on sexual orientation and gender identity;
• The example of harassment based on gender identity creating an objectively hostile work environment, in Section III(B)(3)(d); and
• All language defining “sexual orientation” and “gender identity” as a protected class.

The implications of the court’s ruling extend beyond a single case, reflecting broader trends related to the Trump administration’s reversal of policies established during the Biden era. Federal courts across the country are contending with how to handle gender issues in the workplace. Relatedly, the EEOC has moved to dismiss several lawsuits it had filed on behalf of transgender individuals. Those dismissals and issuance of the 2024 EEO-1 report form that only recognizes binary sex identities further align with the Trump administration’s agenda to reverse employment policies prioritizing diversity, equity, and inclusion (DEI). In a message to EEO-1 Component filers, EEOC Acting Chair Andrea Lucas warned employers against using demographic data collected and reported in EEO-1 Component 1 reports to facilitate unlawful employment discrimination based on race, sex, or other protected characteristics in violation of Title VII.

What These Developments Mean for Employers

The sections of the EEOC’s 2024 Harassment Guidance that were not vacated by the court’s decision in State of Texas and the Heritage Foundation v. EEOC are still valid and continue to function as the prevailing criteria for managing workplace harassment in accordance with federal law. It remains uncertain whether this decision will lead other courts to invalidate the sections of the 2024 Harassment Guidance that remain in effect and whether the EEOC will modify those portions when it regains a quorum.

Employers should continue to implement measures to mitigate discrimination and create fair and safe workplace environments for all employees, as required by Title VII. In addition, employers should review their policies and practices to ensure compliance with state and federal laws prohibiting discrimination based on sex and gender, where applicable.

The changes to the EEOC’s 2024 EEO-1 Component 1 Data Collection selections for gender reporting call for employers to gather workforce data to complete the report as it currently stands. This could mean employers will need to re-collect information that complied with the EEOC’s 2023 EEO-1 Component 1 Data Collection instructions that allowed employers to voluntarily report non-binary employees in the “comments” section of the report without having to assign such employees to male and female categories within the report. Such an endeavor will need to be handled with sensitivity to avoid giving rise to discrimination claims.

Employers should also continue to monitor developments at the state and local levels. State and local enforcement agencies in certain geographies may prioritize enforcing state and local laws that restrict discrimination based on gender identity, especially given recent actions taken by federal agencies and courts.

[1] Texas v. Equal Emp. Opportunity Comm’n, No. 2:24-CV-173-Z, 2025 WL 1414332 (N.D. Tex. May 15, 2025).

[2] Enforcement Guidance on Harassment in the Workplace, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.

[3] Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1754 (2020).

[4] Texas v. EEOC, 633 F. Supp. 3d 824, 847 (N.D. Tex. 2022).

[5] Texas v. Equal Empl. Opportunity Comm’n, No. 2:24-CV-173-Z, 2025 WL 1414332 (N.D. Tex. May 15, 2025).

[6] Id. at *6.

[7] Id. at *16.