UPDATE: Jan. 29, 2025: Trump’s removal of two Democratic EEOC commissioners — and recent statements from the one Republican commissioner — suggest the guidance is likely to be modified or rescinded under a reshaped, Trump-friendly commission.
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The federal government may be backing off its defense of the U.S. Equal Employment Opportunity Commission's anti-harassment guidance addressing gender identity issued last year, according to court filings.
A federal judge on Jan. 23 ordered the plaintiffs, a number of red states, led by Tennessee, to confer with the U.S. Department of Justice — counsel for EEOC — to determine whether the court still needs to consider their complaint and request for preliminary injunction in light of recent administrative changes and actions (Tennessee, et al. v. EEOC).
The complaint, filed last April, alleged that EEOC unlawfully expanded Title VII of the Civil Rights Act of 1964 enforcement using an improper interpretation of the U.S. Supreme Court’s Bostock v. Clayton County decision. “EEOC proposed essentially to amend Title VII to create a de facto accommodation for gender identity — even though Bostock did not address the accommodations context,” the states said in their complaint.
After months of considering amicus briefs in support of both the states and EEOC, Judge Charles Atchley Jr. in December set oral arguments for Jan. 27. “The Court is mindful that agency interpretations addressing issues of this nature often change from one presidential administration to the next,” Atchley wrote at the time, ordering the parties to meet to “discuss the future of this litigation and whether a judicial resolution remains necessary.”
On Jan. 22, two days after President Donald Trump was inaugurated, DOJ requested that oral arguments be canceled, citing Trump’s inauguration, his executive order pertaining to sex and gender, and new leadership at the helm of both EEOC and DOJ.
“The position of the United States is reflected in the President’s Executive Order, notwithstanding any prior position taken by the Defendants in this case,” DOJ attorneys wrote in the request.
While Atchley granted the request to vacate oral arguments, he expressed confusion in his response over whether the “motion remains live.”
“If the issues presented by the motion remain in dispute, the Court intends to hear oral argument on the motion,” Atchley wrote. “If, on the other hand, there is no longer a legal basis for Plaintiffs’ motion, Plaintiffs are obliged to withdraw it.”
DOJ represents the U.S. in legal matters; when EEOC is sued, the representation can be discordant in cases when the two agencies are in disagreement. DOJ tends to represent the current administration, while EEOC’s ideological standing is more reflective of its current makeup. At present, while Trump’s pick of Andrea Lucas now leads the agency, she sits alongside three Democrats on the commission. One seat is empty, but Trump’s eventual filling of the seat is not expected to tip the balance to create a conservative-leaning agency. And changes to guidances such as the one in question must be approved by a majority vote of the commission, as the agency now notes above the guidance.
A similar situation occurred during the last Trump administration in 2018, when a conservative DOJ was at odds with EEOC over the very same issue.
EEOC declined to comment on how it plans to proceed with the guidance, referring HR Dive to DOJ; that agency did not respond about its legal plans by press time.
