On January 22, 2026, the EEOC formally rescinded Biden-era workplace guidance addressing transgender issues following a May 2025 federal court decision invalidating key portions of that guidance. While the rescission reflects a shift in federal enforcement priorities, it does not alter employers’ substantive obligations under Title VII.
Key Legal Backdrop: Bostock v. Clayton County
In Bostock v. Clayton County (2020), the U.S. Supreme Court, in an opinion authored by Justice Neil Gorsuch, held that terminating an employee because the employee is gay or transgender violates Title VII’s prohibition on discrimination “because of sex.”
The case consolidated three lawsuits in which employees alleged they were fired solely for being gay or transgender. The employers did not dispute the terminations; the sole legal question was whether such actions fell within the ambit of Title VII.
The Court concluded they did, applying a “but-for” causation analysis. The Court reasoned that discrimination based on sexual orientation or transgender status necessarily takes sex into account, because:
- An employer who fires a man for being attracted to men, but would not fire a woman for being attracted to men, has made sex a determining factor
- An employer who penalizes a person for identifying or presenting differently from the sex assigned at birth necessarily relies on the employee’s sex in making the decision
In the Court’s words, if changing the employee’s sex would have produced a different outcome, then sex is a but-for cause and Title VII is violated, even if sex was not the employer’s primary motivation and even if the employer treats men and women as groups equally.
The Bostock Court expressly limited its holding to employment actions such as hiring and firing, leaving questions about bathrooms, dress codes, and pronoun usage unresolved.
EEOC’s 2024 Harassment Guidance
In April 2024, the EEOC issued updated Enforcement Guidance on Harassment in the Workplace, its first comprehensive revision in decades. The guidance addressed harassment under federal anti-discrimination laws, including Title VII. Among other things, relying on Bostock, the EEOC also addressed harassment based on sexual orientation and gender identity, including examples involving misgendering and access to sex-segregated facilities.
The May 2025 Federal Court Decision
In Texas v. EEOC, No. 2:24-cv-173 (N.D. Tex. May 15, 2025), a federal court vacated portions of the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace, holding that the agency exceeded its statutory authority.
The court struck down provisions that treated the following as per se Title VII violations or mandatory accommodations:
- Defining “sex” to include gender identity for harassment purposes
- Treating intentional misgendering or refusal to use preferred pronouns as inherently unlawful harassment
- Requiring bathroom or sex-segregated facility access based on gender identity
- Requiring dress code accommodations tied to gender identity
The court emphasized that these issues involve policy judgments not clearly resolved by Title VII and cannot be imposed through agency guidance.
EEOC Procedural Context
The harassment guidance was issued in 2024 by a 3–2 vote, over the dissent of then-Commissioner (now Acting Chair) Andrea Lucas, who objected to the bathroom-access and pronoun-use provisions.
President Donald Trump issued Executive Order 14168 on January 20, 2025 directing the EEOC to rescind guidance inconsistent with the order. The Commission lacked a quorum as of January 27, 2025 and could not take formal action. Following the May 2025 court ruling, the EEOC flagged and shaded the invalidated portions of the guidance on its website pending further review.
Arkansas & Eighth Circuit Impact
- Bostock remains binding in the Eighth Circuit. In Horton v. Midwest Geriatric Management, LLC, 963 F.3d 844 (8th Cir. 2020), the Eighth Circuit expressly adopted Bostock and confirmed that prior circuit precedent is no longer controlling and reinstated a Title VII claim after an employer allegedly withdrew a job offer upon learning the applicant was gay.
- The Arkansas Civil Rights Act is narrower and does not expressly cover sexual orientation or gender identity, but federal Title VII does for covered employers
Practical Takeaways for Employers
- Adverse actions tied to sexual orientation or gender identity remain high-risk
- The EEOC cannot require specific accommodations by guidance alone
- Courts, not agencies, will define the scope of unresolved workplace issues
- Objective, well-documented decision-making remains critical
Bottom Line:
The EEOC’s rescission reflects a change in enforcement priorities and a court-imposed limit on agency authority, not a retreat from Bostock. Arkansas employers remain subject to Title VII liability for discrimination based on sexual orientation or gender identity, and unresolved workplace accommodation issues will continue to be shaped by court decisions rather than agency guidance.
Authored By: Khayyam M. Eddings and Michael S. Moore