By: Jamie Davila, Esq. and Ty Hyderally, Esq.

Date: April 17, 2026

In Selina S. v. Daniel Driscoll, Secretary, Department of the Army, EEOC Appeal No. 2025003976, the Equal Employment Opportunity Commission has addressed the questions of whether Title VII requires a federal agency to allow a transgender employee to use bathrooms and locker rooms consistent with the employee’s gender identity[1].

In Executive Order 14168, § 4(d), 90 Fed. Reg. 8615 (Jan. 20, 2025)., it states that it is the policy of the United states that “initiate spaces ]in federal workplaces]… are designated by sex and not identity.[2] Selina S., is a civilian employed by the U.S. Army would use male designated restrooms and locker rooms. However, this changed in 2025 when Selina S. informed their management that he identified as a woman and requested access to the female designated facilities.[3] The agency denied the request due to the guidance requiring sex-based designation of “intimate spaces.” The EEOC framed the issue as whether Title VII’s prohibition on discrimination “because of sex” extends to access to sex-designated bathrooms and locker rooms. The EEOC relied on the analysis of Bostock v. Clayton County, which held that firing or refusing to hire someone “simply for being transgender” is discrimination “because of sex” under Title VII[4]. However, it is noteworthy that Bostock did not address the question of access to “bathrooms, locker rooms, or anything else of the kind.” [5]

The EEOC came to the conclusion that Title VII permits federal agencies to maintain single-sex bathrooms and similar intimate spaces and to exclude employees from opposite-sex facilities.[6] The EEOC reasoned that if Title VII does not forbid an employer from excluding non-trans-identifying employees from opposite-sex bathrooms, then Title VII also does not forbid an employer from excluding trans-identifying employees from opposite-sex bathrooms. In other words, if an employer can bar some men from using the women’s bathroom, then an employer can lawfully bar all men from using the women’s bathroom. The EEOC reasoned that a particular man’s or woman’s “self-identification” would be irrelevant. The reasoning was predicated upon the assumption that a man who identifies as a “transwoman” is still a man; a woman who identifies as a “transman: is still a woman.[7] Hence, both may be excluded from opposite-sex bathrooms as such.[8] The EEOC noted that exclusion from intimate spaces by itself is not a plausible Title VII claim. From this assertion, the EEOC concluded that a policy separating bathrooms by biological sex does not constitute unlawful discrimination if applied equally to all employees, regardless of transgender status.

What does this Mean?

The EEOC’s decision does not apply to private employers. However, it does provide insight into how the EEOC would approach facility access claims. Since the Bostock decision, Federal courts remain divided on the outcome, and many state and local laws require that employees be permitted to access facilities consistent with their gender identity. Specifically, it distinguishes between adverse employment actions based on transgender status and access to sex-designated intimate spaces. Additionally, the ruling does not provide a safe harbor for employers’ decisions concerning employees’ access to intimate spaces.[9]

What should Employers Do?

Employers should consider revisting and evaluating whether a uniform nationwide policy creates a compliance risk in today’s world. It is important to note that workplace safety guidance and other regulatory considerations may also intersect with facility-access policies. For contractors and subcontractors operating on federal property, they may face operational and employee relations challenges, if agency rules governing facility access differ from internal policies.

If you have any questions regarding your rights as an employee, you should seek an experienced attorney who concentrates in employment law. Our firm has been concentrating in employment law for over twenty-three (23) years!

En nuestra firma hablamos español. This blog is for informational purposes only. It does not constitute legal advice and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice regarding your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state or jurisdiction.

[1] Selina S. v. Daniel Driscoll, Secretary, Department of the Army, EEOC Appeal No. 2025003976 (Feb. 26, 2026) https://www.eeoc.gov/sites/default/files/2026-02/2025003976.pdf

[2] Id.

[3] Ross T. Weimer, Mona E. Abboud, William Whitaker, Where Identity Meets Precent” The EEOC Address Bathroom and Locker Room Access Under Title VII, (April 8, 2026), https://natlawreview.com/article/where-identity-meets-precedent-eeoc-addresses-bathroom-and-locker-room-access-under (Last visited on April 14, 2026).

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 2.

[8] Id.

[9] Id. at 1.