Advocates Step Up After EEOC About-Face On Gender Identity

Two nonprofits taking up gender identity discrimination cases that the U.S. Equal Employment Opportunity Commission is abandoning offers a preview of the role that advocacy organizations will play defending transgender workers as the Trump administration attacks their rights, experts said.

The American Civil Liberties Union and the Gender Equality Law Center have recently called on federal courts for permission to represent workers in discrimination and harassment cases that the EEOC is clearing from its caseload because of President Donald Trump's policies.

Seven lawsuits the EEOC lodged last year alleging mistreatment of transgender and nonbinary workers may not align with Trump's Jan. 20 executive order declaring that official U.S. policy will recognize just two "immutable" sexes, the commission told courts in the February filings announcing plans to drop these cases.

The agency's retreat means these employees' claims will be dismissed by the courts unless the workers formally intervene in the litigation.

The ACLU's branch in Michigan and the Brooklyn, New York-based GELC, which offers free legal services for women and LGBTQ workers, have now raised their hands in two of the dropped legal battles, looking to represent parties whose claims will no longer be championed by the federal government.

And more intercessions are in the pipeline.

Greg Nevins, senior counsel at LGBTQ+ advocacy organization Lambda Legal, told Law360 that he has been working to connect the employees involved in these legal battles with representation, and he said additional advocacy organizations, as well as some private lawyers, will likely be getting involved soon.

"There has been some movement," Nevins said. "There's going to be more movement very shortly in a couple others."

The National Employment Lawyers Association, a worker-side attorney organization, has also played a big role in making these connections, and NELA's program director, Ashley Westby, told Law360 that she's optimistic that the bulk of these cases will be picked up.

"All of the cases have had at least one intervenor connect with them, or have had a list of intervenors sent to them," Westby said. "We're happy to see that it looks like at least six, if not all seven, will meet the deadline to file in court with intervenors."

Employment lawyers said that the nonprofits' activities are indicative of what will be a running theme under Trump's second administration, in which these organizations will be picking up the baton on issues the commission has decided are not a priority.

"The ACLU said something to that effect in its brief, when the agency that is charged with addressing and attempting to vindicate these rights doesn't do it, someone has to step up," said Olaoluwaposi O. Oshinowo, an employer-side attorney who is of counsel at Wiley Rein LLP.

"And you're going to see that all throughout the process."

The EEOC's backtrack on gender identity discrimination has reverberated beyond the courtroom.

In January, the agency's new leader, Trump administration appointee Andrea Lucas, pulled down a slew of online resources on LGBTQ+ worker protections, and followed up with a Jan. 28 statement declaring she is "rolling back the Biden administration's gender identity agenda."

The moves included removing the nonbinary "X" gender marker and "Mx." prefix as voluntary self-identification options for workers filing discrimination charges, and rescinding agency employees' ability to include pronouns on their Microsoft profiles.

An EEOC spokesperson confirmed in January that discrimination claims that might conflict with Trump's executive orders, including the one declaring that "sexes are not changeable," are being rerouted upstairs for review.

"I think it's likely that they're not going to find reasonable cause in any of these cases, or file litigation in any of these cases that involve trans individuals," said H. Juanita Beecher, of counsel at management-side firm Fortney Scott LLC.

Nevins, of Lambda Legal, added that it seems "very clear" that "the EEOC is not going to do much of a job, if anything, investigating gender identity discrimination claims."

Syeda Davidson, a senior staff attorney for the ACLU of Michigan, is one of a trio of the ACLU lawyers who asked a federal court in Detroit on Thursday for the green light to represent two former food service employees in a suit the EEOC originally filed in October.

The agency said higher-ups at a Clarkston, Michigan, restaurant failed to protect the pair's transgender co-worker from mistreatment, and then sacked all three workers for complaining about the abuse.

Davidson, who joined the ACLU in 2020 and has years of experience representing workers in discrimination cases, told Law360 that their organization is poised to continue picking up the slack, even if they're not yet sure what battles are on the horizon.

"If this administration does not want to protect the transgender community's rights, then we will. We will use every tool in the toolbox to do that," Davidson said. "We don't know what that looks like at this time, because it's all been so unpredictable, but we are keeping an eye out."

On Feb. 20, two attorneys from GELC, including the center's founder and executive director Allegra Fishel, appeared in a New York federal court seeking to represent a transgender hotel worker whom the EEOC had sued on behalf of in September.

According to that suit, a manager at a hotel in western New York "repeatedly and intentionally misgendered and dehumanized" that employee, including making comments that transgender people are what's "wrong" with society, but higher-ups did not do anything about the misconduct.

Fishel, a longtime civil rights lawyer who previously spent a decade at worker-side employment firm Outten & Golden LLP, said it's "incumbent" now on lawyers like herself to make sure the law is upheld.

She emphasized that the law has not changed. The U.S. Supreme Court declared in Bostock v. Clayton County in 2020 that Title VII of the Civil Rights Act, which the EEOC is charged with enforcing, bars discrimination based on someone's sexual orientation or gender identity.

In addition, the EEOC's standing guidance on Bostock — which will need a quorum to be rescinded, and the agency currently only has two of its five leadership seats filled — advances strong protections for LGBTQ workers.

That document clarifies that outing a co-worker, making fun of their gender expression, repeatedly misgendering them or denying them access to a facility that corresponds with their gender identity could contravene federal law.

"This is unprecedented for a federal agency, that was created by Congress to enforce Title VII, which the Supreme Court says covers transgender workers, to be told, based on an executive order, that they can't represent these folks," Fishel said. "We believe we have a very strong mandate to step in where the government is now failing transgender and nonbinary individuals."

"I think all workers' rights lawyers, whether they're in private practice or non-for-profits, have an obligation to step forward," she said.

Even with these efforts, it's possible the EEOC's public pivot on gender identity may have a chilling effect, said Oshinowo of Wiley Rein.

"Organizations like the ACLU are going to continue to step in to assist in making sure those suits are brought," Oshinowo said. "But I don't know how someone wouldn't feel a little demoralized, and maybe less likely to attempt to vindicate their rights, under a context where the president of the United States is saying he doesn't believe you should be protected by the law, and the EEOC is reversing positions about your ability to be protected under existing law."

--Additional reporting by Grace Elletson, Patrick Hoff, Amanda Ottaway, Braden Campbell and Vin Gurrieri. Editing by Amy Rowe and Nick Petruncio.

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