The Trump EEOC’s retreat from transgender discrimination enforcement has set up an impending legal showdown over whether the agency is violating the constitutional rights of workers it’s tasked with protecting.
Spurred by President
Those shifts run afoul of the US Constitution’s Equal Protection Clause because they deprive transgender workers of protections and processes afforded to cisgender workers, according to a lawsuit recently filed in Maryland federal court by FreeState Justice. The complaint also points to conflicts with the US Supreme Court’s 2020 Bostock v. Clayton County decision expanding the scope of LGBTQ+ protections under Title VII of the 1964 Civil Rights Act, and violations of the Administrative Procedure Act.
Employment law scholars and attorneys say the litigation embodies growing concerns from worker advocates that the Trump administration is selectively enforcing federal anti-bias laws in a way that undermines its own legal obligations.
“What the EEOC is alleged to have done is very disconcerting and is flatly contrary to what its entire mission is, which is to alleviate discrimination and not facilitate it,” said Greg Nevins, senior counsel at LGBTQ+ rights advocacy group Lambda Legal.
But prevailing on an Equal Protection claim is far from assured because of precedent that generally defers to agencies’ enforcement choices, and FreeJustice must also show that EEOC lacks any legitimate basis for its enforcement changes, legal scholars said.
“The counterargument is that each administration has its own agenda to carry out whatever they believe is the proper enforcement of the law,” said Joseph Seiner, a law professor at the University of South Carolina.
The Justice Department, which represents the EEOC, didn’t immediately respond to a request for comment.
EEOC Actions
Title VII requires workers to file discrimination charges with the EEOC before they can sue. While only a small number of those lead to EEOC lawsuits, the charge process can result in pre-litigation settlements.
The EEOC under Trump initially stalled processing of transgender bias charges by instructing staff to classify them in a category typically used for claims that lack merit. In July, the agency resumed processing some charges, but required extra review of potentially meritorious claims by a senior attorney and the chair’s office.
According to FreeState, the EEOC is limiting its transgender bias focus to allegations involving hiring, firing, or promotion—which leaves out claims of harassment.
The commission also said it would no longer provide financial backing for state and local agencies’ efforts for transgender workers.
FreeState reiterated in a statement that the EEOC’s policies “undermine the law and endanger people.”
Equal Protection
To establish an Equal Protection claim, FreeState must demonstrate that transgender workers were treated differently than other similarly situated employees due to discrimination without a lawful reason.
The EEOC’s moves “create Equal Protection problems” because other workers still receive the full range of charge investigation and enforcement protections the commission provides, Seiner said.
Nevins added that a worker cannot bring a viable lawsuit without the benefits of the EEOC’s charge process, which could also lead to a settlement.
Denying these benefits to some employees “is wrong, so I believe this court will favorably support the Equal Protection claim,” Nevins said.
But the level of court scrutiny will also play a role in the case.
The court will likely apply “intermediate” scrutiny rather than the more lenient “rational basis” scrutiny to the claim, as several lower courts have done since Bostock, said attorney Lauren Kelleher of Brown Goldstein & Levy.
The high court recently declined to clarify the level of review for Equal Protection claims in transgender bias cases, but three conservative justices expressed that rational basis applies.
The absence of definitive legal guidance puts FreeStates’ case “in a tricky position,” Kelleher said.
Rational basis would require the group to show that the EEOC had no legitimate purpose in its enforcement shift.
Agency Defenses
The administration is expected to justify its stance by referencing long-standing Supreme Court rulings recognizing agencies’ exercise of enforcement discretion, said Seiner, a former EEOC appellate attorney.
But the high court’s 1985 Heckler v. Chaney ruling found that an agency’s non-enforcement isn’t absolute and can be subject to judicial review under certain conditions, including violation of constitutional rights or statutory responsibilities.
Title VII doesn’t require the EEOC to investigate all charges or pursue every possible legal action, said Katie Eyer, a Rutgers Law School anti-discrimination law professor. However, the agency must process all charges it received, she said.
“That doesn’t necessarily mean they have to give them all equal amounts of resources,” Eyer said.
But under Trump, the EEOC is going beyond standard priority shifts with an administration change, she added.
Procedural Hurdles
Even before a court considers the Equal Protection claim, FreeState Justice must show it has standing to sue because it or its members have been or will be harmed by the EEOC’s actions.
Its complaint accused the EEOC of subjecting workers to a less effective charge-filing process at the Maryland Commission on Civil Rights, which doesn’t always share employers’ responses to a claim.
Uncertainty about whether the state agency will keep accepting gender identity bias charges has led FreeJustice to focus resources on outreach, education, and non-legal aid to offset harms from the EEOC, the suit said.
FreeState would’ve made “a stronger” case for standing had it identified a client who sought protection “or a response from the EEOC on a workplace harassment claim” and didn’t get that relief, said University of Pennsylvania law professor Cary Coglianese. “It’s obviously something that the government will challenge.”
Nevins said the unusual nature of the case makes it unpredictable how the court will rule on substance and procedure.
“There haven’t been lawsuits like this because there haven’t been actions like this,” he said.
The case is FreeState Justice v. EEOC, D. Md., No. 1:25-cv-02482.
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