On January 20, 2025, President Trump signed an Executive Order titled “Defending Women from Gender Ideology Extremism And Restoring Biological Truth to the Federal Government.” This order states that the federal government will use “biological” male and female categories. It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to remove parts of the Harassment Guidance that do not align with this order.
Since the Executive Order, the EEOC has been unable to make any changes to the Harassment Guidance. The EEOC needs a majority vote from its five members to do this. However, the Commission has not had enough members since late January 2025 because three positions are vacant. Although Acting Chair Andrea Lucas disagrees with the guidance parts that conflict with the Executive Order, she cannot change them without a quorum.
On May 15, 2025, a federal court in Texas ruled that the Harassment Guidance’s definition of “sex” was unlawful because it went beyond the biological categories of male and female. The court found that the guidance misinterpreted the U.S. Supreme Court’s decision in Bostock v. Clayton County. The Bostock case only addressed whether firing someone for being homosexual or transgender violated Title VII’s ban on sex discrimination. The court confirmed that Bostock did not expand the definition of “sex” and did not cover issues like bathrooms or locker rooms.
The Texas court’s decision vacated parts of the Harassment Guidance related to sexual orientation and gender identity. This includes guidance on harassment in sex-segregated facilities and the use of preferred pronouns.
This decision affects not only the case parties but also applies nationwide. The Texas court decided that its ruling impacts agency action more broadly.
Despite this ruling, the EEOC cannot remove its vacated guidance parts because it still lacks a quorum. However, the EEOC has made some changes on its website to show which parts of the Harassment Guidance have been vacated, marking those sections in gray and adding alerts about the changes.
The Bostock decision is still in effect. Title VII continues to protect employees from discrimination based on sexual orientation and gender identity. Although the EEOC may not pursue litigation on these issues based on its recent actions, it still has the authority to do so. Employees can still file private claims for such discrimination.