Federal agency shifts stance on transgender discrimination complaints, but hurdles remain

The federal agency responsible for enforcing laws against workplace discrimination will allow some complaints filed by transgender workers to move forward, shifting course from earlier guidance that indefinitely stalled all such cases, according to an email obtained by The Associated Press.

The email was sent earlier this month to leaders of the U.S. Equal Employment Opportunity Commission with the subject line “Hot Topics,” in which Thomas Colclough, director of the agency’s Office of Field Programs, announced that if new transgender worker complaints involve “hiring, discharge or promotion, you are clear to continue processing these charges.”

But even those cases will still be subject to higher scrutiny than other types of workplace discrimination cases, requiring approval from President Donald Trump’s appointed acting agency head Andrea Lucas, who has said that one of her priorities would be “defending the biological and binary reality of sex and related rights.”

Since Trump regained office in January, the EEOC has moved away from its prior interpretation of civil rights law, marking a stark contrast to a decade ago when the agency issued a landmark finding that a transgender civilian employee of the U.S. Army had been discriminated against because her employer refused to use her preferred pronouns or allow her to use bathrooms based on her gender identity.

Under Lucas’s leadership, the EEOC has dropped several lawsuits on behalf of transgender workers. Lucas defended that decision during her June 18 Senate committee confirmation hearing in order to comply with the president’s executive order declaring two unchangeable sexes.

However, she acknowledged that a 2020 Supreme Court ruling — Bostock v. Clayton County — “did clearly hold that discriminating against someone on the basis of sex included firing an individual who is transgender or based on their sexual orientation.”

Colclough acknowledged in his July 1 email that the EEOC will consider transgender discrimination complaints that “fall squarely under” the Supreme Court’s ruling, such as cases involving hiring, firing and promotion. The email backtracked on an earlier policy, communicated verbally, that de-prioritized all transgender cases.

The EEOC declined to comment on the specifics of its latest policy, saying: “Under federal law, charge inquiries and charges of discrimination made to the EEOC are confidential. Pursuant to Title VII and as statutorily required, the EEOC is, has been, and will continue to accept and investigate charges on all bases protected by law, and to serve those charges to the relevant employer.”

But even the cases that the EEOC is willing to consider under Bostock must still be reviewed by a senior attorney advisor, and then sent to Lucas for final approval.

This heightened review process is not typical for other discrimination charges and reflects the agency’s increased oversight for gender identity cases, former EEOC commissioner Chai Feldblum told The AP in a Monday phone interview.

“It is a slight improvement because it will allow certain claims of discrimination to proceed,” Feldblum said of the new policy. “But overall it does not fix a horrific and legally improper situation currently occurring at the EEOC.”

Colclough’s email did not clarify how long the review process might take, or whether cases that include additional claims, such as harassment or retaliation, would be eligible to proceed, and the EEOC declined to address those questions.

“This is not the EEOC being clear to either its own staff or to the public what charges are going to be processed,” Feldblum said. “This is not a panacea.”

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