As transgender bathroom access legislation continues to generate controversy across the U.S., the Equal Employment Opportunity Commission issued a new Fact Sheet unequivocally stating its position with regard to restroom use by transgender employees. The sheet notes EEOC administrative decisions involving federal employees, as well as the new Fourth Circuit Court of Appeals decision involving Title IX rights as the basis for its conclusion that under Title VII, employers may not deny transgender employees use of restrooms consistent with their gender identity.

The Fact Sheet states that employers may not condition the right of access to bathrooms on the employee providing proof of surgery or other medical procedures. In addition, according to the EEOC employers do not comply with their statutory obligations by restricting transgender employees to designated single-use restrooms. The EEOC also states that Title VII preempts state laws with contrary provisions.

The new Fact Sheet bases its legal conclusions both on Title VII’s direct prohibition against gender discrimination, as well as case law regarding enforcement by employers of gender stereotypes. The EEOC is currently involved in active litigation in federal district courts with regard to Title VII’s applicability to transgender status. Unless federal courts reject the agency’s position, employers can expect the EEOC to consider transgender status protected in administrative proceedings and litigation.

On Wednesday, the U.S. Department of Justice sent Governor McCrory a letter advising him of DOJ’s position that portions of North Carolina’s HB2 legislation that apply to educational institutions and public employees violate Title IX and Title VII respectively. Based on legal reasoning similar to that used by the EEOC’s Fact Sheet, DOJ threatened to take legal action against North Carolina unless the objectionable portions of the law are changed.