The majority decision said that the law “is silent on the topic of single-sex bathrooms” and that no federal court has yet “authoritatively addressed whether Title VII requires employers to permit trans-identifying employees to access bathrooms and other intimate spaces otherwise reserved for the opposite sex.” [Image: Andrey_Popov/Shutterstock.com]

The EEOC has held that the Civil Rights Act “permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces. And it permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite-sex facilities.”

In a 2-1 decision, the EEOC board reversed policy dating to 2015 on access to spaces in federal workplaces such as bathrooms, changing areas and locker rooms, in line with a first-day Trump administration executive order stating that such spaces are to be “designated by sex and not by identity.” A trans-identifying Army employee had asserted that the agency’s policy of designating bathrooms based on sex, as opposed to gender identity, constituted unlawful sex-based discrimination.

The majority decision said that the law “is silent on the topic of single-sex bathrooms” and that no federal court has yet “authoritatively addressed whether Title VII requires employers to permit trans-identifying employees to access bathrooms and other intimate spaces otherwise reserved for the opposite sex.”

However, it said that under other precedent, “it has been unerringly accepted that employers and other public-facing entities may lawfully maintain single-sex bathrooms . . . if an employer can lawfully bar some men from using the women’s bathroom (or some women from using the men’s bathroom), then an employer can lawfully bar all men from using the women’s bathroom (and all women from using the men’s bathroom). A particular man’s or woman’s “self-identification” would be irrelevant.

It said that “a responsible federal court, if asked, would agree with our conclusion that under Title VII, federal agency employers may lawfully exclude men from the women’s bathroom, and women from the men’s bathroom.”

The majority noted that the decision applies only in the federal employment context, not in the private sector context, adding “that an employer is permitted to maintain single-sex bathrooms in no way opens the door to segregated bathrooms based on other protected characteristics, including race.”

“Today’s opinion is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally,” said EEOC chair Andrea Lucas.

The decision can be appealed into federal court.