Bostock, Executive Orders, and the Evolving Framework for Gender Identity Discrimination: Takeaways from the ABA ERR Conference

Last week, I had the privilege of speaking at the ABA Section of Labor and Employment Law’ Employment Rights and Responsibilities Midwinter Meeting on a topic that has been a recurring theme on this blog for nearly two decades: “Bostock, Executive Orders, and the Evolving Framework for Gender Identity Discrimination.”

Our panel featured an outstanding group of practitioners and thought leaders. Former EEOC General Counsel Karla Gilbride, Sandra Pullman of the New York State Attorney General’s Office, and Tess Shelton of Godwin, Morris, Laurenzi & Bloomfield joined me for what turned out to be a wide-ranging and, at times, spirited discussion. Nicole Groves Bridgeforth of Meta served as our moderator and did a terrific job keeping us all in check — no small feat given how much ground there was to cover.

And there was a lot to cover.

A Rapidly Shifting Federal Landscape

If you’ve been following this blog, you know that I’ve been writing about gender identity discrimination in the workplace since the early days — from the passage of Connecticut’s gender identity and expression law back in 2011, to the landmark Bostock v. Clayton County decision in 2020 where the Supreme Court ruled 6-3 that Title VII prohibits employment discrimination on the basis of sexual orientation or gender identity. As I wrote at the time, “An employer who fires an individual merely for being gay or transgender defies the law.”

What’s changed since then — and dramatically so — is the federal enforcement landscape under the current administration. The Trump administration has been pressing the issue of gender identity both in the courts and as a political priority, and the EEOC has been at the center of much of the activity. Just in the last few weeks, there have been significant developments that our panel discussed at length.

Most notably, on February 26, 2026, the EEOC issued its decision in Selina S. v. Driscoll, ruling 2-1 along party lines that Title VII permits federal agencies to exclude transgender employees from bathrooms and other sex-segregated facilities that correspond to their gender identity. The decision effectively overturned the Commission’s own 2015 precedent in Lusardi v. Department of the Army, which had held that denying bathroom access consistent with an employee’s gender identity constituted unlawful sex discrimination.

The Selina S. decision is striking for several reasons. The majority opinion defines “sex” under Title VII as “immutable” and biological, concluding that the complainant — a transgender woman who worked as a civilian IT specialist at Fort Riley, Kansas — is, in the Commission’s view, a man. It acknowledged that no federal court has “authoritatively addressed” whether Title VII permits or requires employers to maintain single-sex bathroom policies that exclude transgender employees, but it went ahead and offered its own interpretation anyway.

Commissioner Kalpana Kotagal, the lone dissenter, issued a pointed statement warning that the decision “rests on the false premise that transgender workers are not worthy of the agency’s protection from discrimination and harassment” and cautioned that it could cause an “exodus of transgender employees from the federal government.”

Former EEO Leaders Push Back

It’s worth noting that the Selina S. decision has drawn sharp criticism from outside the Commission as well. Former EEOC officials — including Karla Gilbride, who was on our panel, along with former Commissioner Chai Feldblum and a group of other former leaders who have organized as “EEO Leaders” — have issued a detailed legal critique of the decision.

Their analysis is thorough and worth reading for any practitioner grappling with these issues. Among other things, they argue that the Selina S. opinion’s definition of sex as “immutable” is not supported by any of the dictionary definitions the opinion itself cites, and that the only source for the “immutability” concept is President Trump’s Executive Order 14168 — a policy pronouncement, not a legal authority. They also make the compelling point that the Supreme Court in Bostock itself repeatedly described sex as a characteristic that could change over time when discussing transgender plaintiff Aimee Stephens, which is flatly inconsistent with how the Selina S. majority treats the concept.

The former EEO Leaders are also careful to note that the Selina S. decision, by its own terms, applies only to federal agencies subject to the EEOC’s administrative complaint process. It does not bind any federal court, and it does not directly apply to private-sector employers. But as our panel discussed, its ripple effects could be significant — particularly in how the EEOC investigates and processes charges going forward.

What This Means for Connecticut Employers

Here’s what I want Connecticut employers to take away from all of this, and it was a central theme of our panel discussion: State law has not changed.

Connecticut continues to prohibit employment discrimination on the basis of gender identity and expression. That protection has been on the books since 2011, and it remains fully in effect. Whatever the EEOC is doing at the federal level — and regardless of how the current administration chooses to interpret Bostock — employers in Connecticut cannot discriminate against employees because of their gender identity. Full stop.

Moreover, Bostock itself remains good law. Even EEOC Chair Andrea Lucas has acknowledged that. The Supreme Court’s holding that Title VII prohibits employers from making employment decisions based on an individual’s transgender status has not been overturned or modified. What we’re seeing is an effort by the current administration to narrow its reach, particularly with respect to bathroom access and other sex-segregated spaces. But the core holding — that an employer who fires or refuses to hire someone simply for being transgender violates Title VII — stands.

The Practical Advice from the Panel: Don’t Be Mean

I’ll confess that after an hour-plus of discussion about executive orders, EEOC decisions, competing legal theories, and the patchwork of state and federal protections, the most practical piece of advice from our panel was refreshingly simple: Don’t be mean to your employees.

That may sound flip, but it’s not. Employers need good, high-performing employees. Creating a hostile or unwelcoming work environment for any employee — regardless of whether a particular federal agency is currently interested in enforcing their rights — is bad for morale, bad for retention, and bad for business. It’s also, in many jurisdictions including Connecticut, illegal.

The legal landscape around gender identity discrimination is going to continue evolving. There are lawsuits pending that could result in federal court decisions directly addressing the bathroom access question that Bostock left open. The Selina S. complainant herself has until May 27, 2026 to file a civil action in federal court. And state legislatures across the country continue to weigh in on both sides of the issue.

In the meantime, employers should continue to comply with applicable state and federal laws, maintain robust anti-discrimination policies, and treat all employees — including transgender employees — with the basic respect and dignity that good employers have always provided.

I’m grateful to the ABA Section of Labor and Employment Law for the invitation to speak, and to my fellow panelists — Karla, Sandra, Tess, and Nicole — for a thoughtful and engaging discussion. These are complicated issues, and having practitioners from different perspectives around the table is exactly how the profession should be addressing them.