Bostock, Executive Orders, and the Evolving Framework for Gender Identity Discrimination: Takeaways From the ABA ERR Conference

Key Takeaways

• EEOC's Selina S. decision narrows transgender bathroom rights
• Decision overturns 2015 Lusardi precedent, defines sex as immutable
• State laws like Connecticut's still protect gender identity employment rights
• Bostock remains controlling precedent; federal courts yet to address bathrooms
• Experts urge employers to maintain respectful, non‑discriminatory workplaces

Summary

At the ABA Employment Rights and Responsibilities Midwinter Meeting, panelists examined the EEOC’s recent Selina S. v. Driscoll decision, which reinterprets Title VII to allow federal agencies to restrict transgender employees from gender‑aligned facilities, overturning the 2015 Lusardi precedent. The ruling, issued along party lines, defines sex as immutable and relies on a Trump executive order rather than established legal authority, prompting sharp criticism from former EEOC officials. Despite the federal shift, Connecticut’s state law continues to prohibit gender‑identity discrimination, and the Supreme Court’s Bostock holding remains intact. Practitioners were advised to focus on respectful workplace policies rather than navigating uncertain regulatory changes.

Pulse Analysis

The 2020 Supreme Court decision in Bostock v. Clayton County cemented Title VII’s prohibition on discrimination based on sexual orientation and gender identity, establishing a federal baseline for transgender workplace protections. Since then, the EEOC has been the primary enforcement engine, issuing guidance and litigating cases that shape employer obligations. However, the current administration has pivoted toward a more restrictive interpretation, leveraging executive orders and agency rulings to test the limits of Bostock’s reach, especially in the context of sex‑segregated facilities.

The EEOC’s February 26 ruling in Selina S. v. Driscoll upended the 2015 Lusardi precedent by declaring sex a biologically immutable characteristic and permitting federal workplaces to bar transgender employees from bathrooms that align with their gender identity. The majority opinion leaned on Trump’s Executive Order 14168 rather than judicial authority, prompting a dissent that warned of an exodus of transgender federal workers. Former EEOC officials and the advocacy group EEO Leaders have publicly challenged the reasoning, arguing it conflicts with Bostock’s language and could influence how the Commission processes future discrimination charges.

For Connecticut employers, the federal tug‑of‑war does not alter state law; gender‑identity and expression discrimination remains prohibited statewide, and Bostock’s core holding is still good law. Practitioners should therefore maintain comprehensive anti‑discrimination policies, ensure bathroom access aligns with employee identity, and foster a culture of respect to mitigate litigation risk and preserve morale. As pending lawsuits may soon clarify the bathroom question at the federal level, businesses that adopt consistent, inclusive practices now will be better positioned to adapt to any future regulatory shifts.