Utah, West Virginia, and Wyoming have enacted new laws defining sex as binary and immutable — male or female — and restricting transgender and nonbinary individuals from using school and government building facilities that align with their gender identity.
Under Bostock v. Clayton County (2020), the U.S. Supreme Court held that discrimination based on gender identity or sexual orientation is unlawful sex discrimination under Title VII of the Civil Rights Act. That ruling remains the law of the land.
Here’s what’s happening:
🔹 Utah (effective now): Defines sex based on reproductive anatomy and bars access to bathrooms in public buildings based on gender identity.
🔹 West Virginia (effective June 16, 2025): Similar binary definition of sex, mandates access restrictions, and requires “reasonable accommodations” (e.g., single-occupancy restrooms).
🔹 Wyoming (effective now): Passed multiple laws defining sex based on biology and restricting public school bathroom access by sex assigned at birth.
These laws track a January 2025 Executive Order issued by President Trump that defines sex as “binary and immutable” for federal agencies — a definition that contradicts Bostock and, at least for now, current EEOC enforcement. That said, EEOC Chair Andrea Lucas has indicated that she wants to rescind all or part of the earlier guidance related to gender identity once a quorum exists at the EEOC.
⚖️ What Does This Mean for Employers?
1️⃣ Private Employers Remain Bound by Federal Law
These state laws do not apply to private sector workplaces. Employers nationwide are still required to comply with Title VII, and Bostock. That said, there is a real question as to whether an employee can still get a right to sue letter from the EEOC if they file a charge of discrimination based on a gender identity claim.
2️⃣EEOC Changes Ahead
While the EEOC’s April 2024 guidance aligns with Bostock, as noted above, the current leadership has signaled plans to walk that back once a quorum exists.
👥 Bottom Line for Employers
✅ This is a rapidly changing area of the law, and there are real questions about whether the EEOC will continue to enforce gender identity claims.
✅ Look for other states to follow similar paths as Utah, Wyoming, and Wisconsin.
✅ Bostock remains the law of the land but talk to your local employment counsel about the practical realities surrounding gender identity issues and the EEOC.