The State of Texas and the Heritage Foundation, on behalf of employers, have challenged the EEOC's recent Enforcement Guidance on Harassment in the Workplace. The lawsuit alleges that the Guidance, as it pertains to transgender employees, goes far beyond the 2020 U.S. Supreme Court decision in Bostock v. Clayton County, which held that discrimination based on gender identity (and sexual orientation) was a form of sex discrimination prohibited by Title VII.

The Enforcement Guidance, issued by the Equal Employment Opportunity Commission in April, says that the following are forms of gender-identity-based harassment:

• Refusing to allow a transgender employee to use the bathroom of the gender with which they identify
• Failing to use a transgender employee's preferred pronouns, at least if deliberate and repeated
• "Dead-naming" a transgender employee (that is, using the transgender employee's old name), at least if deliberate and repeated

The majority decision in Bostock clearly stated that it was addressing only whether it was a violation of Title VII to discriminate against an individual based on gender identity.

In the challenge to the Enforcement Guidance, Texas and the Heritage Foundation filed a motion for summary judgment. As would be expected, the EEOC opposes the motion and has filed a cross-motion for summary judgment. This week, the American Civil Liberties Union, the AFL-CIO, the Service Employees International Union, the National Women's Law Center, and other organizations asked to file an amicus ("friend of the court") brief siding with the EEOC. (The proposed brief is attached to their request.)

The Enforcement Guidance is also the subject of a separate challenge by the State of Tennessee and 17 other states, pending in federal court in Knoxville.

Even more interesting than before, in light of the bathroom controversy this week in Congress. We'll keep you posted.