By Shaun Southworth, federal employee attorney
For federal employees, discrimination rarely arrives as an abstract legal debate. It shows up in daily humiliations. A supervisor keeps using the wrong name. An agency refuses to update records. A transgender employee is told to use a different restroom than everyone else of the same gender. Health coverage disappears for treatment that would never be questioned if the employee were not transgender. Then, when the employee complains, the agency acts as though the problem is not discrimination at all, but the employee’s refusal to stay quiet. Earlier EEOC precedent recognized precisely those kinds of harms as actionable in the federal workplace.
That is why the Equal Employment Opportunity Commission’s recent moves under Chair Andrea Lucas matter. They are not academic. They send a message to federal agencies that the Commission is now willing to retreat from its own prior protections for transgender workers. On February 26, 2026, the EEOC approved a 2-1 federal-sector decision holding that Title VII permits federal agencies to maintain single-sex bathrooms and similar intimate spaces and to exclude transgender employees from opposite-sex facilities, expressly overruling Lusardi on that point. On March 24, 2026, the EEOC held that OPM’s 2015 policy allowing FEHB carriers to provide less-than-full coverage for gender-affirming care was not unlawful sex or disability discrimination, and it said Skrmetti required overruling the EEOC’s 2024 decision in Lawrence.
I think those moves are wrong.
And I do not mean “wrong” only as a policy matter. I mean wrong as a legal matter.
Start with the foundation. In Macy, the EEOC held that discrimination against a transgender person is discrimination because of sex under Title VII. In Jameson, the Commission recognized that intentional misuse of a transgender employee’s name and pronouns may constitute sex-based discrimination or harassment. In Lusardi, the Commission held that restricting a transgender woman’s restroom access and repeatedly misgendering her violated Title VII. In Lawrence, the Commission held that a categorical FEHB exclusion for care related to gender transition was direct evidence of sex discrimination. That was not a stray line of cases. It was a coherent federal-sector doctrine: sex discrimination law protects transgender federal employees from unequal treatment in the real conditions of work.
Then there is Bostock. The Supreme Court held in 2020 that when an employer fires someone for being homosexual or transgender, sex plays a “necessary and undisguisable role” in the decision, which is exactly what Title VII forbids. The Court made that point while assuming, for sake of argument, that “sex” referred to biological distinctions between male and female. That is important. Lucas’s recent opinions keep returning to “biology” as though invoking biology ends the analysis. But Bostock already shows why that move is not enough. Even accepting a biological definition of sex, an employer still violates Title VII when it takes action against a person for being transgender.
The February 2026 restroom decision tries to sidestep Bostock by saying the Supreme Court did not decide bathrooms or locker rooms. That is true as far as it goes. Bostock did say it was not deciding bathrooms, locker rooms, or anything else of the kind. But “the Court did not decide this exact fact pattern” is not the same thing as “Title VII allows the discrimination.” The better reading is that the question remained open. And before Lucas’s Commission reversed course, the EEOC’s own answer in Lusardi was the better one: an employer cannot deny a transgender woman access to the women’s restroom based on coworker discomfort, managerial unease, or some demand for proof of surgery. Title VII has never been at its best when it lets other employees’ prejudice set the rules.
The February 2026 decision also rigs the comparison. It says a transgender woman is treated the same as any other man who wants to use the women’s restroom. But that framing assumes the very issue in dispute. Bostock teaches that sex discrimination is often exposed by asking whether changing the employee’s sex changes the outcome. A cisgender woman can use the women’s restroom. A transgender woman is denied that same access because of sex assigned at birth. That is a sex-linked classification. At minimum, it is a serious Title VII question, not something that should be dismissed as legally obvious.
The March 2026 health-benefits decision is just as troubling. In Lawrence, the EEOC correctly recognized that health insurance is part of compensation and the terms, conditions, and privileges of employment. It also recognized a critical nuance: Title VII does not necessarily require every requested gender-affirming treatment to be covered, but it does require coverage decisions to be made using nondiscriminatory standards. That is a careful rule. It does not say every dispute over coverage is discrimination. It says the government cannot single out care for worse treatment because the employee is transgender or because the care is needed in connection with gender transition.
Lucas’s Commission says Skrmetti overrules that reasoning. I do not think it does. Skrmetti was an Equal Protection challenge to a Tennessee law regulating treatments for minors. Lawrence was a Title VII employment-discrimination case about federal employee compensation and benefits. Those are not the same legal questions, under the same text, in the same posture. Importing Skrmetti wholesale into Title VII is not compelled. And that matters, because Bostock remains the Supreme Court’s central Title VII decision on discrimination against transgender employees.
There is another reason these decisions should not scare federal employees into silence: the EEOC is not the final court of meaning. The February 2026 restroom decision says so expressly. It applies only to federal agencies within the EEOC’s administrative complaint process. It does not apply to private employers, and it does not bind federal courts. That limitation matters. An agency-friendly administrative ruling can shape the first stage of the fight. It can make the road harder. But it does not repeal Title VII. It does not erase Bostock. And it does not close the courthouse door.
That is exactly why people facing gay, lesbian, bisexual, or transgender discrimination in federal employment should talk to a federal employee attorney early. The law in this area is becoming more contested, not less. Deadlines matter. Forum selection matters. Claim framing matters. A case that an agency wants to reduce to a “bathroom issue” may actually involve hostile work environment, denial of equal terms and conditions of employment, retaliation, records-related discrimination, benefits discrimination, or multiple overlapping claims. Earlier federal-sector decisions show how often those issues overlap in real life.
And after Muldrow, Title VII does not require some extra, judge-made showing of “significant harm” before an employee can complain about discriminatory changes to terms or conditions of employment. Some harm with respect to an identifiable term or condition is enough. That matters in the federal workplace, where agencies often try to trivialize indignities that are actually central to a person’s daily life and dignity on the job. Restroom access, accurate records, name and pronoun usage, and fair access to benefits are not side issues. They are workplace conditions.
Federal employees should understand the moment clearly. Andrea Lucas’s EEOC is trying to move the law in a narrower direction, especially for transgender workers. That is real. It is serious. And it will make some cases harder at the administrative level. But it is not the same thing as saying the law has disappeared. It has not. The Supreme Court still says Title VII forbids discrimination because of sex, and Bostock still says you cannot discriminate against a person for being transgender without discriminating because of sex. The harder fight is still a fight worth having.
No one should have to choose between federal service and basic dignity. No one should have to prove who they are to use a restroom, update a record, or seek equal treatment in workplace benefits. And no one facing discrimination should assume that an agency’s first answer is the law’s last answer. That is precisely when experienced legal advice matters most.