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According to a February 27, 2026, 2-1 decision by the U.S. Equal Employment Opportunity Commission (EEOC) in Selina S. v. Dep't of the Army, the EEOC determined that it does not constitute sex discrimination for federal agencies to prohibit transgender employees from using bathrooms, locker rooms, and other intimate spaces that correspond with their gender identity. This decision reverses the prior 2015 finding of the EEOC in Lusardi v. Dep't of the Army, requiring that federal agencies allow transgender employees access to opposite sex restrooms. In its reasoning, the EEOC concluded that Title VII only requires federal agencies to provide equal treatment of transgendered employees and that men and women are not similarly situated when it comes to the use of intimate spaces, and so single-sex intimate spaces do not violate Title VII. No federal court has yet defined what "sex" means under Title VII or weighed in on the issue of access to restrooms, so the EEOC concluded that "sex" refers to "biological classification as either male or female."
While the Selina S. decision only applies to federal agencies subject to the EEOC's administrative complaint process for federal employees and is not binding on federal courts, the reasoning of the decision could ultimately impact private sector employers and further opens the door for increased challenges to private sector policies on access to intimate spaces. Federal courts may ultimately interpret Title VII differently than the EEOC, but private sector employers should remain cognizant of potential increased scrutiny of their policies and potential legal changes that may impact such policies. Employers should remain aware that some states have begun enacting laws regarding access to intimate spaces, and, therefore, as such policies and laws come under increasing scrutiny, the possibility exists for conflicting rulings from state and federal courts.
What's Next for Private Employers?
While the legal landscape in this arena continues to evolve, private sector employers should review their own intimate spaces access policies for compliance with current federal, state, and local laws and watch this space for new laws that might impact those policies. Employers should consult their employment lawyers with any questions about whether their policies comply with applicable laws.
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