Federal Court Blocks LGBTQ Guidance in 20 States

Author: Emily Scace, Brightmine Legal Editor

July 26, 2022

Following the decision of a federal district judge, the Biden administration's directives surrounding workplace treatment of LGBTQ employees are barred from enforcement in 20 states.

The administration issued the directives following the Supreme Court's 2020 ruling in Bostock v. Clayton County, which held that discrimination based on sexual orientation or transgender status constitutes illegal sex-based discrimination under Title VII of the Civil Rights Act of 1964.

In a January 2021 executive order, President Biden directed all federal agencies to implement the holding of Bostock. The Equal Employment Opportunity Commission (EEOC) issued guidance in July 2021 elaborating on the impact of Bostock on employers' practices. The guidance covered a host of areas including protections for job applicants, sex stereotyping, dress codes, pronouns and names, bathroom and locker room access, and more.

Among other things, the guidance specified that:

  • Employers may not prohibit a transgender person from dressing or presenting in a manner consistent with the individual's gender identity;
  • An employer may have sex-segregated bathroom and locker room facilities but must allow employees to use the facility that corresponds to their gender identity; and
  • Repeated and intentional use of the wrong name or pronoun for a transgender employee could constitute harassment in violation of Title VII.

In August 2021, 20 state attorneys general brought a lawsuit challenging the guidance as unlawful and seeking a preliminary injunction to block its enforcement while the case is pending. Judge Charles Atchley Jr. of the Eastern District of Tennessee granted the injunction earlier this month, reasoning that the guidance directly conflicted with laws in some of the plaintiff states and noting that the Bostock decision explicitly declined to address issues surrounding bathrooms, locker rooms and dress codes.

As a result, the EEOC cannot enforce the guidance in the 20 plaintiff states while the case is pending. The 20 states are:

  • Alabama;
  • Alaska;
  • Arizona;
  • Arkansas;
  • Georgia;
  • Idaho;
  • Indiana;
  • Kansas;
  • Kentucky;
  • Louisiana;
  • Mississippi;
  • Missouri;
  • Montana;
  • Nebraska;
  • Ohio;
  • Oklahoma;
  • South Carolina;
  • South Dakota;
  • Tennessee; and
  • West Virginia.

Although the EEOC's actions are constrained for the time being, private plaintiffs in the above states are not barred from bringing lawsuits challenging employers' practices with respect to LGBTQ employees under Title VII. Thus, employers in the states where the injunction applies must strike a difficult balance between avoiding potential legal liability under Title VII and complying with any state laws that may conflict.