Title VII: What Constitutes Discrimination on the Basis of Sex?

On May 15, 2025, the Northern District of Texas issued a significant ruling vacating the gender-identity portions of the EEOC’s 2024 Enforcement Guidance. This decision has major implications for how “sex” is defined under Title VII of the Civil Rights Act, particularly regarding sexual orientation and gender identity.

The U.S. Supreme Court’s landmark 2020 decision in Bostock v. Clayton County clarified that firing an employee because of their sexual orientation or transgender status violates Title VII. Justice Gorsuch, writing for the majority, explained that such discrimination inherently involves discrimination based on sex. However, Bostock was narrowly focused and did not address other workplace issues such as bathroom access or dress codes.

In 2024, the EEOC issued new guidance stating that “sex” under Title VII includes sexual orientation and gender identity. It also provided examples of harassment, such as misgendering or denying access to bathrooms based on gender identity. However, this guidance was not law but served as a resource for employers and employees.

The State of Texas and the Heritage Foundation challenged the 2024 EEOC guidance, and the court ruled that the EEOC had exceeded its authority. The court held that Title VII’s statutory text does not define “sex” to include sexual orientation or gender identity beyond Bostock’s limited scope. The court vacated the gender-identity related portions of the guidance nationwide, stating these provisions were unsupported by law.

Implications for Employers

• Bostock remains binding law, prohibiting termination based on sexual orientation or gender identity.

• The EEOC’s 2024 guidance on gender identity harassment is currently vacated and not enforceable.

• Issues like dress codes, bathroom access, and pronoun use remain unresolved under Title VII and may vary by jurisdiction.

• Employers should be vigilant about state and local laws, which may impose different standards.

• Legal counsel is essential to navigate these complex and evolving issues.

The legal landscape regarding sex discrimination under Title VII continues to evolve. Employers must stay informed and cautious, balancing federal rulings, EEOC guidance, and local laws. Prompt consultation with legal counsel is critical when discrimination claims arise.