The enforcement priorities of the U.S. Equal Employment Opportunity Commission regarding sex-based workplace discrimination, particularly in cases involving transgender employees, have experienced a seismic shift in the changeover between the administrations of President Joe Biden and President Donald Trump.
Under the Biden administration, the EEOC emphasized expanding protections for transgender workers, interpreting Title VII's prohibition on sex discrimination to include gender identity, consistent with the U.S. Supreme Court's seminal 2020 decision in Bostock v. Clayton County.[1]
During Biden's administration, the EEOC had a Democratic majority, which was led by then-Chair Charlotte Burrows.[2] The Trump administration changed the EEOC's leadership,[3] and now Andrea Lucas is the acting chair of the commission.[4]
During Trump's first few months in office, he issued a flurry of executive orders relating to gender identity.[5] As a result, the commission reoriented its enforcement priorities to align closely with the Trump administration.[6]
In February, the EEOC moved to dismiss seven different lawsuits that it filed against employers on behalf of transgender workers throughout the country.[7]
The EEOC's basis for dismissal across these cases resulted from Executive Order No. 14168, which mandated that federal agencies recognize only two sexes, male and female, while also aiming to eliminate "gender ideology" from federal policies, forms and communications.[8]
Thus far, five plaintiffs have had their intervenor actions granted, while the remaining two motions for intervention remain pending in the district courts. Of these seven decisions, one is particularly noteworthy.
On June 5, in EEOC v. Sis-Bro Inc., U.S. District Judge J. Phil Gilbert of the U.S. District Court for the Southern District of Illinois granted a transgender worker's petition to intervene against her former employer after the commission moved to permanently dismiss the lawsuit to comply with the executive order.[9]
The court opined that while it "recognizes that it may not dictate what cases the EEOC pursues," as "[t]hat is the exclusive purview of the Executive Branch," the worker also deserved a fair opportunity to litigate her claims.[10]
By way of background, in March 2024, the EEOC brought an employment discrimination case against Sis-Bro, a pig farm, on behalf of charging party Natasha Figueroa, a Salvadoran woman.
The complaint alleged that her employer discriminated against her by creating a hostile work environment, and that it constructively discharged her based on her sex and transgender status in violation of Title VII.[11]
After surviving a motion to dismiss, the court allowed Figueroa to intervene and assert state law tort and discrimination claims, all of which were either voluntarily dismissed or dismissed by the court without prejudice shortly thereafter.
On Jan. 3, while discovery was ongoing, Sis-Bro filed a motion for partial summary judgment on the issue of back pay, front pay and reinstatement, asserting that Figueroa was not entitled to such relief given that she was not legally eligible to work in the U.S.[12]
While the partial motion for summary judgment was pending, the presidential administration changed, and Trump issued the aforementioned executive order on Jan. 20.
On Feb. 14, the EEOC moved to dismiss the action with prejudice on the basis that continuing to litigate the matter would violate the Trump administration's new executive order.[13]
While the EEOC's motion to dismiss was pending, Figueroa sought to intervene a second time, filing yet another intervenor complaint asserting violations of Title VII, with similar claims to those of the EEOC, in addition to Section 1981 claims based on race, color, ethnicity and national origin.[14]
Figueroa did not request back pay, front pay or reinstatement in her second intervenor complaint, but instead sought nonpecuniary and punitive damages, as well as attorney fees.[15]
In response, Sis-Bro moved to dismiss Figueroa's motion to intervene, among other related motions, in order to dispose of the action entirely.
The court began its June 5 ruling by observing, in dicta, that Figueroa had an interest in her claims that Sis-Bro violated the law, saying that while her claims may fail for other reasons, "the EEOC's change of heart will not be one of those reasons."[16] The court then granted the EEOC's motion to dismiss without prejudice to ensure that Figueroa's rights were not impaired.[17]
The court next addressed Sis-Bro's arguments and rejected the contention that Figueroa's motion to intervene was untimely, given that Sis-Bro was unable to demonstrate that her second intervenor action would have any prejudicial effect.[18]
The court did not allow Figueroa to replead her Section 1981 claims because they were dismissed in the previous intervenor action. However, Figueroa was allowed to plead a new Title VII claim, given that it was like the one that the EEOC had abandoned, despite surviving a motion to dismiss.[19]
The court reasoned that although Figueroa did not assert these claims in her original intervenor complaint, "she placed her confidence in the good faith of the EEOC to pursue her rights along with its other statutory aims," and she sought to timely intervene once it became clear that the EEOC had "changed its mind."[20] Accordingly, the court found that Sis-Bro should be ready to litigate the matter.
As this case — as well as the six other separate dismissal actions — illustrates, the EEOC has largely retreated from the priorities that it championed just over a year ago.[21] Although the EEOC is technically an independent agency, its enforcement objectives are largely dictated by the executive branch.
The EEOC's reversal has not been lost on congressional Democrats. During Lucas' confirmation hearing on June 18, she underwent aggressive questioning from senators on the commission's decision to drop all seven lawsuits on behalf of transgender workers.[22]
In response to this questioning, Lucas claimed, "[i]t was impossible to both comply with the president's executive order as an executive branch agency, and also zealously defend the workers we had brought the case on behalf [of]."[23]
On July 10, perhaps in response to pressure from Congress, the Washington Post reported that the EEOC would once again resume considering discrimination cases brought by transgender workers after instructing its staffers back in April to automatically classify new gender identity discrimination cases as code "C," a category that is reserved for the commission's lowest priority cases.[24]
Even so, it is unlikely that the EEOC will opt to file any new lawsuits on behalf of transgender workers, given the lengths that it has gone to dismiss all current litigation relating to gender identity in order to comply with the executive order.
Although there has been a changing of the guard, and the EEOC under Trump has drastically different enforcement priorities than the Biden administration, the commission's pending enforcement actions will not be so easily dismissed by courts, to the extent that such actions conflict with newly promulgated executive orders, provided that the allegedly aggrieved private litigant is ready and able to pursue the action without the EEOC's assistance.
Given that the EEOC under Trump has indicated that it will withdraw from many areas that were championed during the Biden administration — e.g., disparate impact cases and abortion-related Pregnant Workers Fairness Act accommodation actions — private enforcement actions may increase in the coming months to fill the enforcement vacuum that has been left open by the commission.
Employers may see a spike in allegedly aggrieved employees who are asserting gender identity discrimination claims filing EEOC charges, only to promptly opt out of the administrative process so they can be issued right to sue letters and pursue a private right of action instead.
Employers may also see an increase in enforcement actions being taken by state and municipal administrative agencies under state and local antidiscrimination laws, which, in many cases, offer broader or more explicit protections for transgender and nonbinary individuals.
As a result of the changeover in presidential administrations, employers can operate under the assumption that the commission's gender identity enforcement actions will slow down in the next three years.
During this time, private enforcement actions and lawsuits brought by state administrative agencies will likely fill in the gap as a mechanism for pursuing gender identity discrimination claims.
The commission's change in enforcement priorities does not eliminate the risk of gender identity discrimination actions, and employers should continue to ensure that their employment policies are compliant with state and local guidance.
References
[1] Bostock v. Clayton County 
, 140 S. Ct. 1731 (2020).
[2] See https://www.eeoc.gov/newsroom/president-appoints-charlotte-burrows-eeoc-chair (January 21, 2021) (Appointing Charlotte A. Burrows acting chair of EEOC and Jocelyn Samuels vice chair of the EEOC).
[3] Wiessner, Daniel. "Trump hobbles US anti-discrimination agency by firing Democrats." Reuters, January 28, 2025. https://www.reuters.com/world/us/trump-hobbles-us-anti-discrimination-agency-by-firing-democrats-2025-01-28/; See also Olson, Alexandra and Claire Savage. "Ex-EEOC commissioner fired by Trump files lawsuit demanding reinstatement." AP News, April 9, 2025. https://apnews.com/article/equal-employment-eeoc-trump-lawsuit-11c89b6c6a55c006c09345b1c80421b5 (discussing federal lawsuit filed by former Commissioner Jocelyn Samuels).
[4] See https://www.eeoc.gov/commission (noting the commission includes Andrea Lucas (acting chair)); Kalpana Kotogol (commissioner); and three vacancies.
[5] Keeping Men out of Women's Sports (EO 14201); Protecting Children from Chemical and Surgical Mutilation (EO 14187); Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (EO 14168).
[6] EEOC Newsroom, Removing Gender Ideology and Restoring the EEOC's Role of Protecting Women in the Workplace (Jan. 28, 2025), https://www.eeoc.gov/newsroom/removing-gender-ideology-and-restoring-eeocs-role-protecting-women-workplace.
[7] EEOC v. Reggio's Pizza Inc., Case No. 1:24-CV-08910 (N.D. Ill.) (aggrieved individual's motion to intervene and proceed under a pseudonym is pending with the district judge.); EEOC v. Boxwood Hotels LLC, Case No. 1:24-cv-00902 (W.D.N.Y.) (granting the aggrieved individual's motion to intervene); EEOC v. Harmony Hospitality LLC, Case No. 1:24-CV-00357 (M.D. Ala.) (granting the aggrieved individual's motion to intervene); EEOC v. Lush Handmade Cosmetics LLC, Case No. 5:24-CV-06859 (N.D. Cal.) (granting an unopposed intervenor complaint on behalf of a class of aggrieved individuals); EEOC v. Starboard Group Inc., Case No. 3:24-CV-02260 (S.D. Ill.) (motion to intervene pending with the district court); Lucas v. Brik Enterprises Inc., Case No. 2:24-CV-12817 (E.D. Mich.) (stipulated order allowing aggrieved individual to intervene); EEOC et al. v. Sis-Bro Inc., Case No. 3:24-CV-00968 (S.D. Ill. June 5, 2025) (granting aggrieved individual's motion to intervene).
[8] Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (EO 14168).
[9] EEOC et al. v. Sis-Bro Inc., Case No. 3:24 CV 00968, ECF No. 86 (S.D. Ill. June 5, 2025).
[10] Sis-Bro Inc. at 3.
[11] Id. at 1.
[12] Id. at 2.
[13] Id.
[14] Id. at 7.
[15] Id. at 3.
[16] Id. at 4.
[17] Id. at 4-5.
[18] Id. at 6.
[19] Id. at 7-8.
[20] Id. at 9.
[21] As the Commission itself summarized in its Annual Performance Report, just last year, "The EEOC also engaged in outreach to combat discrimination based on sexual orientation and gender identity. In support of the White House Gender Policy Council and multiple executive orders, including Executive Order 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (EO 13988); EO 13985; and Executive Order 14075: Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals (EO 14075), the EEOC conducted 246 LGBTQI+ outreach events, reaching 27,250 individuals." See EEOC 2024 Annual Performance Report (Jan. 17, 2025), https://www.eeoc.gov/2024-annual-performance-report.
[22] Alexandra Olson, Claire Savage, Acting head of civil rights agency defends decisions undercutting transgender workers, AP News (June 18, 2025), https://apnews.com/article/eeoc-andrea-lucas-senate-hearing-dei-transgender-8cb16648226adc24f04f85bc9a166d21.
[23] Id.
[24] Julian Mark, EEOC to consider some transgender discrimination cases after months-long pause, The Washington Post (July 10, 2025).
