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Why is the EEOC suddenly deleting gender identity discrimination resources from its website?
Earlier this week, I searched for LGBTQ+ resources on the U.S. Equal Employment Opportunity Commission (EEOC) website. On Google, I found a page titled “Moving Towards Equality in the Workplace for LGBTQI+ Employees.” But when I clicked the link, I got an error message: “The requested page could not be found.” The same thing happened with several other links.
Now I know why.
The EEOC’s Shift in Focus
Under Acting Chair Andrea Lucas, the EEOC has begun rolling back gender identity policies from the previous administration. The agency says these changes are meant to reinforce protections based on biological sex and single-sex workplace facilities. In a press release, the EEOC confirmed its new direction. Here are the key points:
1. Renewed Focus on Biological Sex and Single-Sex Facilities
The EEOC now emphasizes protecting women from sex-based discrimination and harassment by prioritizing biological sex. This includes:
- Defending women’s access to single-sex restrooms and locker rooms at work.
- Removing the “X” gender marker option from the discrimination charge intake process.
- Eliminating “Mx.” as a prefix option on official forms.
2. Changes to Pronoun Usage and Gender Identity Policies
- The EEOC removed the “pronoun app” from employees’ Microsoft 365 profiles. This tool allowed employees to display their preferred pronouns.
- Internal and external EEOC documents no longer include materials promoting gender identity policies.
- The agency is shifting away from policies that accommodate gender identity, instead reinforcing a biological sex-based framework.
3. Impact on Workplace Harassment Guidance
Lucas has criticized EEOC guidance that includes gender identity protections. While she can’t unilaterally revoke these rules, she has made it clear that using pronouns based on biological sex is not considered harassment under EEOC policy. This stance could shape how businesses handle gender identity-related complaints.
What This Means for Employers
Absolutely nothing. At least not yet. I’ll explain why:
- Guidance and Regulations: Although the EEOC may remove resource documents and training materials, without a quorum of Commissioners, it cannot reverse any regulations or formal guidance, like this one, that prohibits harassment based on gender identity.
- Court Decisions Matter More: The EEOC’s position on gender identity carries little weight in the courtroom. The Supreme Court has said that courts should independently decide whether an agency’s interpretation of an ambiguous statute is accurate. And in a decision that did not specifically address bathroom use, the Supreme Court has also said that LGBT discrimination generally violates Title VII.
- State Laws Still Apply: Many states have their own gender identity protections that employers must follow, regardless of EEOC policy changes.
Bottom Line for Employers
Stay informed, but don’t overreact or get tunnel vision. The EEOC’s position can change with political leadership, but federal and state laws still govern workplace discrimination policies. Ensure your policies align with them.