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The EEOC can’t repeal Bostock, but it’s sure trying

By Jonathan Hyman on March 3, 2026
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The EEOC just voted 2–1 to hold that federal agencies may restrict bathrooms and other “intimate spaces” based on biological sex — and may exclude transgender employees from facilities consistent with their gender identity.

“Biology is not bigotry,” says EEOC Chair Andrea Lucas.

Except according to the Supreme Court, it very much is.

In Bostock v. Clayton County, SCOTUS held that discrimination against transgender employees is discrimination “because of sex” under Title VII. That wasn’t a narrow ruling about terminations. It was a statutory interpretation decision. The Court said that when an employer treats someone differently for being transgender, sex is necessarily part of the decision.

You don’t get to separate “biology” from the analysis. The Court already did the textual math.

Commissioner Kalpana Kotagal dissented, warning that the decision “rests on the false premise that transgender workers are not worthy of the agency’s protection from discrimination and harassment and that protecting them threatens the rights of other workers.”

The majority argues there’s no binding precedent on bathrooms specifically, so it returned to the “ordinary meaning” of sex in 1964.

But once the Supreme Court interprets a statute, agencies don’t get to rewind the clock and start over. You may disagree with Bostock. But it governs.

A few important guardrails:

• This applies only to federal agencies.

• It does NOT apply to private employers.

• It does NOT bind federal courts.

• It does NOT overrule Bostock.

What it does do is create tension with Supreme Court precedent — and invite litigation.

It also carries a very real human risk.

The practical impact of policies like this isn’t abstract. It’s harm to transgender workers — exclusion from basic workplace facilities, increased exposure to harassment, and the kind of stigmatization that courts have already recognized as unlawful. When access to a restroom becomes a legal battleground, the people caught in the middle are employees just trying to do their jobs.

Which raises the practical question: was this a widespread workplace problem that needed solving?

Most employers have managed restroom access pragmatically for years, balancing inclusion and privacy without operational chaos. Employment law should address real harms — harassment, retaliation, unequal pay — not create new ones.

Employers should focus on minimizing liability by continuing to adopt policies that treat transgender employees consistent with their gender identity while protecting privacy for everyone. It’s the legal thing to do. Just ask the Supreme Court.

     

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Photo of Jonathan Hyman Jonathan Hyman
Jon Hyman is a trusted advisor to small and mid-sized businesses across various industries, helping them solve workforce challenges and defend against legal disputes.
He is a shareholder at Wickens Herzer Panza in Avon, Ohio, where he chairs the firm’s Employment and Labor
…
Jon Hyman is a trusted advisor to small and mid-sized businesses across various industries, helping them solve workforce challenges and defend against legal disputes.
He is a shareholder at Wickens Herzer Panza in Avon, Ohio, where he chairs the firm’s Employment and Labor practice group and its Craft Beer practice group, and serves on the firm’s Board of Directors. Jon works closely with clients on all aspects of labor and employment law, providing proactive solutions to prevent issues and a strong defense in litigation when conflicts arise.
As outside in-house counsel, Jon is the go-to advisor businesses call when they need help with employee terminations, drafting policies, handling leave or accommodations, or navigating tricky internal complaints. He also brings deep expertise in areas like wage and hour compliance, workplace technology issues, and union avoidance. Jon builds lasting partnerships with his clients, understanding their unique challenges and helping them achieve long-term compliance and success
When it comes to litigation, Jon stands up for businesses in disputes over discrimination, harassment, wrongful discharge, non-competes, trade secrets, wage and hour issues, and union matters. Jon works with his clients to craft targeted defense strategies that protect their interests and aim for resolutions that support their broader business goals.
Jon also leads the firm’s Craft Beer practice, where he helps breweries, brewpubs, taprooms, and other craft beer businesses tackle their unique legal and regulatory needs.
Jon writes the award-winning Ohio Employer Law Blog, which the ABA Blawg Hall of Fame recognized for its daily insights on labor and employment law. His updates help his clients, HR professionals, and other business leaders stay ahead of labor and employment law changes that impact their daily operations.
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  • Posted in:
    Employment & Labor
  • Blog:
    Ohio Employer Law Blog
  • Organization:
    Wickens Herzer Panza
  • Article: View Original Source

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