Court Ruling Creates Uncertainty for LGBTQ Workplace Protections
Federal judge in Texas strikes down protections for LGBTQ workers.
A federal judge in Texas just struck down key protections for LGBTQ workers, creating new uncertainty about our rights in the workplace. The May 15 ruling threatens protections against harassment based on sexual orientation and gender identity that many of us have come to rely on.
As both a judge and a member of the LGBTQ community, I’m concerned about what this means for our community’s workplace rights. While I must remain neutral on matters that may come before the court, I believe we all deserve to understand what’s happening and how it might affect us.
What Happened?
Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas vacated portions of the Equal Employment Opportunity Commission’s (EEOC) workplace harassment guidance. Specifically, he rejected sections that protected transgender employees from being denied bathroom access that matches their gender identity, being deliberately misgendered, or being prevented from dressing according to their gender identity.
The EEOC had considered these forms of harassment to be prohibited under federal law following the Supreme Court’s landmark 2020 decision in Bostock v. Clayton County. Judge Kacsmaryk disagreed, arguing the EEOC had overstepped its authority.
This ruling came after President Trump’s January 20 executive order declaring that the federal government would recognize only “two sexes, male and female” and define these as “immutable.” *1
What Bostock Actually Said
To understand why this matters, we need to remember what the Supreme Court actually said in the Bostock case.
In that groundbreaking 2020 decision, the Supreme Court ruled that Title VII’s prohibition against sex discrimination in employment covers discrimination based on sexual orientation and gender identity. Justice Gorsuch wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”
The Court made clear that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Can a District Court Judge Overrule the Supreme Court?
No. It’s important to understand that, as a district court, Judge Kacsmaryk’s ruling cannot alter the binding precedent established in Bostock. The Supreme Court’s core holding that firing someone for being gay or transgender violates Title VII remains controlling law nationwide.
What the ruling does attempt to do is narrowly interpret Bostock‘s application, creating significant questions about how broadly the Supreme Court’s reasoning extends to other forms of discrimination and harassment beyond hiring and firing decisions.
Dueling Legal Interpretations
Legal experts are divided on whether Judge Kacsmaryk’s ruling properly interprets Bostock.
Critics argue the ruling misreads Bostock and improperly limits its scope. They point out that while Bostock focused on firing decisions, its reasoning established a broader principle: discrimination based on sexual orientation or gender identity inherently involves sex discrimination. Under established precedent, if firing someone for being gay or transgender is sex discrimination, then creating a hostile work environment based on those characteristics would similarly violate federal law.
“The district court’s decision is an outrage and blatantly at odds with Supreme Court precedent,” said Liz Theran of the National Women’s Law Center. “The EEOC’s Harassment Guidance reminds employers and workers alike to do one simple thing that should cost no one anything: refrain from degrading others on the job based on their identity and who they love.”
However, other legal scholars defend the ruling. Professor Josh Blackman of South Texas College of Law Houston has argued that “Bostock was expressly limited to firing decisions and did not address other workplace issues like bathrooms or pronouns. The EEOC impermissibly expanded the decision beyond its holding.”
Some emphasize the distinction between prohibiting discrimination based on status (being gay or transgender) and requiring affirmative accommodations like pronoun usage that might conflict with an employer’s religious beliefs about biological sex. Others raise separation of powers concerns, arguing that only Congress, not administrative agencies, can expand civil rights protections.
What This Means for Us Right Now
The practical impact of this ruling on LGBTQ workers remains uncertain, but there are several concerning possibilities:
- Immediate Weakening of Federal Protections: The EEOC may be limited in how it investigates and pursues complaints related to transgender accommodations.
- Potential for Increased Harassment: Without clear guidance prohibiting misgendering and other forms of harassment, some LGBTQ employees may face more hostility.
- Bathroom and Dress Code Issues: Transgender employees may have less protection regarding access to appropriate facilities and dress code accommodations.
- Geographic Differences: Those in states with strong LGBTQ non-discrimination laws will still have state-level protections, while those without such protections are more vulnerable.
- Reluctance to Report: The uncertainty may discourage some LGBTQ workers from reporting discrimination.
It’s worth emphasizing that employers still cannot fire you for being gay or transgender. That core protection from Bostock remains intact regardless of this ruling.
Protecting Yourself in the Workplace
Here’s what you can do to protect yourself in this uncertain legal environment:
- Know Your Local Laws: Many states and cities have stronger protections than federal law. Check if your state or city has explicit LGBTQ non-discrimination laws.
- Document Everything: If you experience harassment or discrimination, write down exactly what happened, when it happened, who was involved, and who witnessed it.
- Know Your Company’s Policies: Many companies have inclusive policies that go beyond what the law requires. Review your employee handbook.
- Connect with Support Networks: Organizations like Lambda Legal, the National Center for Transgender Equality, and the Human Rights Campaign offer resources and sometimes legal assistance.
- Consider Legal Consultation: If you experience discrimination, consider consulting with an attorney who specializes in employment discrimination.
What Comes Next?
This ruling likely won’t be the final word. The Trump administration could appeal, though with the change in administration, that seems unlikely. However, other courts in different parts of the country may reach different conclusions, creating a “circuit split” that the Supreme Court might eventually need to resolve.
Many employers will continue following inclusive policies regardless of this ruling—both because it’s good for business and because they may still need to comply with state and local laws.
For our community, this is another reminder that legal protections remain fragile and inconsistent. As we’ve done throughout our history, we’ll need to continue advocating for clear, comprehensive protections while supporting each other through challenges.
The path to workplace equality hasn’t been straightforward, and this ruling represents another detour—but not an endpoint. Our community has overcome greater obstacles, and together, we’ll navigate this one too.
*Footnote: 1. This characterization of sex as strictly binary and immutable differs from the current scientific consensus. Major medical and scientific organizations, including the American Medical Association, the American Academy of Pediatrics, and the Endocrine Society, recognize that biological sex exists on a spectrum with variations that don’t fit neatly into binary categories. According to scientific literature, approximately 0.05-1.7% of the population is born with intersex traits—variations in chromosomes, gonads, or anatomical sex characteristics. Additionally, while certain aspects of biological sex (such as chromosomes) generally remain fixed, other aspects can be altered through medical interventions. See Ainsworth, C. (2018). “Sex Redefined: The Idea of 2 Sexes Is Overly Simplistic,” Scientific American; Lee, P. A., et al. (2016). “Global Disorders of Sex Development Update Since 2006: Perceptions, Approach and Care,” Hormone Research in Paediatrics 85(3): 158-180.
Judge Jerry Simoneaux presides over Harris County Probate Court No. 1 in Houston, Texas, where he has served since January 2019. A frequent legal author and educator, Judge Simoneaux has taught numerous continuing education courses for judges and attorneys throughout Texas. His work has been recognized by the State Bar of Texas with the Judge Norman Black Award for HIV/LGBTQ Advocacy and the Judge Merrill Hartman Pro Bono Judge Award. The Greater Houston LGBTQ Political Caucus also honored him with the Judge Paul Barnich Justice Award. Many of his articles appear on his substack Jerry-Meandering at https://jsimoneaux.substack.com
