EEOC federal-sector appellate decision holds Title VII permits excluding transgender employees from opposite-sex intimate spaces, overruling Lusardi in part

In a 2-1 decision, the Commission affirmed the Army's dismissal of an EEO complaint by a transgender employee whose request to use female-designated bathrooms and locker rooms was denied by management "relying on recent instructions from the President to ensure that 'intimate spaces . . . are designated by sex and not identity.' Exec. Order 14168, § 4(d)." The Commission held that "Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces" and "permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite-sex facilities," concluding that "[w]ithin the EEOC's administrative complaint process, that an employee is excluded from an opposite-sex bathroom or similar intimate space does not by itself state a plausible claim for relief under Title VII." It overrules Lusardi v. Department of the Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015), "only insofar as it held it unlawful for an employer to exclude a trans-identifying employee from the opposite-sex bathroom." The decision expressly states it does not bind private-sector employers or any federal court. Chair Andrea Lucas stated: "When it comes to bathrooms, male and female employees are not similarly situated. Biology is not bigotry."