On February 26, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) issued a significant administrative ruling holding that federal agency employers do not violate Title VII of the Civil Rights Act of 1964 by maintaining single-sex bathrooms and excluding trans-identifying employees from opposite-sex intimate facilities. Selina S. v. Daniel Driscoll, Secretary, Department of the Army, EEOC Appeal No. 2025003976 (Feb. 26, 2026).
Background
The complainant, a male civilian IT specialist employed by the Army at Fort Riley, Kansas informed management in summer 2025 that he now identified as a women and requested access to female-designated bathrooms and locker rooms. Management denied the request, citing Executive Order 14168, which directs that intimate spaces in federal workplaces be “designated by sex and not identity.”
The Army dismissed the complainant’s subsequent EEOC claim for failure to state a claim, and the complainant appealed to the EEOC.
The EEOC’s Analysis
The EEOC treated the appeal as a matter of first impression, noting that no federal court had yet definitely addressed whether Title VII permits single-sex workplace facilities or requires employers to permit trans-identifying employees in opposite-sex spaces. In the absence of guiding precedent, the Commission undertook its own statutory interpretation of Title VII.
Applying an ordinary public meaning analysis, the Commission determined that “sex,” as used in Title VII, refers to an “individual’s immutable biological classification as either male or female,” rather than to self-identity or personal preference.
Relying on Supreme Court precedent, the Commission further explained that unlawful discrimination requires treating an employee less favorably than similarly situated employees because of a protected trait. The similarly situated inquiry, the Commission emphasized, is key to determining whether discrimination has occurred.
According to the Commission, men and women are not similarly situated with respect to the use of intimates spaces such as bathrooms and locker rooms due to inherent physical differences and privacy expectations. For that reason, separating such facilities by sex does not constitute discrimination under Title VII.
Application to Transgender-Identifying Employees
Having concluded that single-sex facilities are generally permissible, the Commission next addressed whether Title VII requires an exception for transgender-identifying employees.
The Commission emphasized that Title VII guarantees equal treatment, not preferential treatment. Because the Army’s policy required all employees to use facilities corresponding to their sex, regardless of transgender-identifying status, the policy reflected uniform enforcement of a workplace rule rather than discriminatory treatment.
Scope of Decision
Although the decision applies only to federal agencies subject to the EEOC's administrative complaint process and does not bind federal courts or private-sector employees, it reflects the current Commission’s interpretation of Title VII and may have broader implications for all employers monitoring developments in workplace discrimination law.
If you have any questions regarding the EEOC ruling, please feel free to contact Michael A. Airdo (mairdo@airdowerwas.com).