The US commission that enforces civil rights laws against workplace discrimination has moved to dismiss six cases it brought on behalf of workers alleging gender-identity discrimination, it was revealed on Saturday.
The Equal Employment Opportunity Commission (EEOC), established via the Civil Rights Act of 1964, said in court papers it was looking to dismiss the cases in Illinois, Alabama, New York and California, because they now conflict with a Trump administration executive order to recognize only two “immutable” sexes, male and female.
Each of the six complaints alleges discrimination against transgender or gender-non-conforming workers.
The case in Alabama charged a hospitality group with discriminating against an employee who identifies as gay, non-binary and male by firing him hours after co-owners learned of his gender identity.
The New York lawsuit alleged that a hotel group fired a transgender housekeeper who complained that a supervisor repeatedly misgendered them and made anti-transgender statements, referring to the housekeeper as a “transformer” and “it”.
The complaint in Illinois alleged that a Wendy’s franchisee subjected three transgender employees to pervasive sexual harassment and claimed a supervisor demanded to know whether one employee had a penis.
In two other cases in the state, a transgender Reggio’s Pizza cashier at Chicago O’Hare international airport was “outed” by her manager, called a racist, homophobic slur by co-workers, and fired when she complained.
In southern Illinois, at a hog farm called Sisbro Inc, a man allegedly exposed his genitals to a transgender co-worker and touched her breasts.
In California, lawyers with the EEOC charged that a Lush handmade cosmetics store manager sexually harassed three gender-non-conforming employees with “offensive physical and verbal sexual conduct”.
The request to dismiss the cases marks a significant shift in the commission’s interpretation of civil rights law and contrasts with a 2015 ruling that determined that discrimination against transgender employees fell under federal sex-discrimination law.
That decision found that the Department of the US Army had discriminated against Tamara Lusardi, a transgender employee who transitioned from male to female on the job, by barring her from using the same bathroom as all other female employees, and by her supervisors’ continued intentional use of male names and pronouns in referring to Lusardi after her transition.
Last year, the EEOC updated its guidance to specify that deliberately using the wrong pronouns for an employee, or refusing them access to bathrooms corresponding with their gender identity, constituted a form of harassment.
The request to dismiss the six cases comes as federal agencies have begun removing references to transgender identity from their websites but not sought to weaken protections against discrimination based on sexual preference.
Last week, the National Park Service eliminated all references to transgender people from its website for the Stonewall national monument in New York that commemorates a 1969 riot, led by trans women of color, that ignited the contemporary gay rights movement.
David Lopez, a former EEOC general counsel and professor at Rutgers law school, told the Associated Press that the commission has never previously dismissed cases based on substance rather than merit.
For the country’s anti-discrimination agency “to discriminate against a group, and say: ‘We’re not going to enforce the law on their behalf’ itself is discrimination, in my view,” Lopez said. “It’s like a complete abdication of responsibility.”
The commission’s website states that it received more than 3,000 charges alleging discrimination based on sexual orientation or gender identity in 2023, up more than 36% from the previous year. But a link for more information on discrimination based on sexual orientation or gender identity appears to have been removed.
Two weeks ago, Trump dismissed two Democratic commissioners of the five-member EEOC before their terms expired. Soon after, the acting EEOC chair, Andrea Lucas, a Republican, signaled her intent to put the agency’s resources behind enforcing Trump’s executive order on gender.
Lucas announced that one of her priorities would be “defending the biological and binary reality of sex and related rights”.
“Biology is not bigotry. Biological sex is real, and it matters,” Lucas said in her statement. “Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths – or to use language like pronouns that flow from these realities, even repeatedly.”
Lucas later ordered that the EEOC would continue accepting any and all discrimination charges filed by workers, but that complaints that “implicate” Trump’s order would be elevated to headquarters for “review”.
Jocelyn Samuels, one of the EEOC commissioners who was fired last month, said that Trump’s executive order and the EEOC’s response to it “is truly regrettable” and that the administration’s “efforts to erase trans people are deeply harmful to a vulnerable community and inconsistent with governing law”.
