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Employment Law Update: The EEOC Revokes Its Guidance on Transgender Protections Under Title VII

At a public meeting on January 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind its Biden-era harassment guidance (the Guidance) that identified persistent misgendering and/or limiting restroom access by gender identity as potential violations of Title VII. This decision to revoke has drawn significant public attention and debate.

The 2–1 vote (with a Democratic Commissioner dissenting) latched onto a 2025 Texas federal court ruling that had already struck portions of the Guidance related to transgender employees.  This action reflects the Trump administration’s narrower reading of the Supreme Court’s 2020 Bostock v. Clayton County decision compared to the prior administration, even as Bostock still recognizes that Title VII bars discrimination based on gender identity and sexual orientation.

What changes, and what does not? The EEOC’s leadership emphasized that rescinding the Guidance does not halt anti-harassment enforcement; the agency stated it will continue investigating and litigating harassment cases notwithstanding the document’s withdrawal. Advocates for keeping the Guidance argued that it captured real-world examples, best practices, and emerging issues, such as online harassment, with footnotes tying examples to case law. They also noted that the guidance “uplifts” marginalized workers and tracks developments, like Bostock. Notably, the rescission occurred without a notice-and-comment period, despite a motion to delay for public input that did not pass.

For employers, the practical takeaway is continuity of risk amid policy flux. Even without the Guidance on the books, the underlying anti-discrimination protections recognized by courts remain in effect, and of course, state and local laws may provide such protections regardless. While the agency has withdrawn this specific guidance document, Bostock and related Title VII principles govern, and businesses should maintain robust, evenhanded anti-harassment and anti-discrimination programs that address gender identity and sexual orientation.

If you have any questions about your current policies, procedures or practices relating to gender identity, misgendering, and/or sexual orientation harassment, please reach out to Whiteford’s Labor and Employment Law team for guidance.

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