A federal agency is officially retiring pro-transgender policies and allowing the government to ensure that biological men do not have access to women’s private spaces, like bathrooms. In a two-to-one decision Thursday, the U.S. Equal Employment Opportunity Commission (EEOC) approved a federal sector decision allowing federal agency employers to maintain single-sex bathrooms and locker rooms under Title VII of the Civil Rights Act and to exclude transgender-identifying employees from bathrooms and locker rooms incongruent with their biological sexes.

“Today’s opinion is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally,” EEOC Chair Andrea Lucas said in a statement. “When it comes to bathrooms, male and female employees are not similarly situated. Biology is not bigotry.”

The case originated with a U.S. Army civilian employee, whom the EEOC identified in its ruling as “male,” noting that he previously identified as male and used male bathrooms and locker rooms. Last year, however, the employee “informed his local management he now identified as a woman, and he requested to use female-designated bathrooms and locker rooms.” His request was denied in compliance with President Donald Trump’s executive order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which instructed federal agencies and employees to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes” and to take “appropriate action to ensure that intimate spaces designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity.”

The Army employee filed an equal employment opportunity complaint, which the Army “dismissed for failure to state a claim,” prompting the employee to appeal to the EEOC in its “quasi-judicial” capacity. In its ruling, the EEOC observed that most cases presented to it are “straightforward” and have often been addressed in principle by federal judicial authorities, especially the U.S. Supreme Court. “This appeal presents a rare exception. No federal court has yet authoritatively addressed whether Title VII permits single-sex bathrooms and other intimate spaces in the workplace,” the EEOC’s majority wrote. “Nor has any federal court yet authoritatively addressed whether Title VII requires employers to permit trans-identifying employees to access bathrooms and other intimate spaces otherwise reserved for the opposite sex.”

In the 2020 case of Bostock v. Clayton County, the Supreme Court’s majority (in that case Chief Justice John Roberts and Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan, the now-retired Stephen Breyer, and the late Ruth Bader Ginsburg) agreed that Title VII protections extended to “sexual orientation” and “gender identity,” but, as the EEOC’s majority noted, explicitly stated, “[W]e do not purport to address bathrooms, locker rooms, or anything else of the kind” in the ruling. In light of the absence of judicial precedent on the matter, but adhering closely to textual statutory interpretation of Title VII, the EEOC concluded that the Civil Rights Act does not bar federal employers from maintaining single-sex bathrooms, locker rooms, and other such “intimate spaces,” nor does it bar federal employers from denying a transgender-identifying employee access to a single-sex space incongruent with his biological sex.

“In the run of federal sector complaints and appeals, the E.E.O.C. does not interpret the statute: we only apply established precedent to facts. We undertake our own interpretation of the statute here only because circumstances dictate we must,” the agency cautioned in its ruling. “There is an active controversy before us, and we cannot simply press the pause button to await authoritative guidance from the courts. The appeal must be decided, one way or the other.”

The ruling reverses a 2015 EEOC decision, made under then-President Barack Obama, which required federal agencies to allow transgender-identifying employees access to bathrooms in accord with their “gender identities,” not their biological sexes. In that case, Lusardi v. Department of the Army, the EEOC concluded that the employee in question was being barred from using a particular bathroom on account of his identification as transgender. That conclusion was based on testimony from the management official who had barred the employee from using a single-sex bathroom incongruent with his biological sex. The official “explained that female employees would be uncomfortable with the Complainant using the women’s bathroom because ‘despite the fact that [the Complainant] is conducting herself as a female, [the Complainant] is still basically a male, physically.’”

“What the Lusardi Commissioners viewed as a smoking-gun was no more than a commonsense acknowledgment that changing one’s conduct does not, and cannot, change one’s sex,” the EEOC wrote on Thursday. “Not only is this too slender a reed to sustain the decision, it is no reed at all.”

In its ruling, the EEOC suggested that if Title VII were interpreted to allow transgender-identifying individuals to use single-sex bathrooms and other “intimate spaces,” then the application of the law would ultimately eliminate single-sex “intimate spaces” altogether. “In other words, it would be unlawful to even have men’s and women’s bathrooms in the first place. All bathrooms would be mixed-sex by law, and every employee would be required to perform bodily and other private functions in the presence of the opposite-sex,” the EEOC wrote.

The agency argued that if federal law allows an employer to exclude non-transgender-identifying employees from single-sex spaces, then it must also allow an employer to exclude transgender-identifying employees from single-sex spaces. “Put another way, if an employer can lawfully bar some men from using the women’s bathroom (or some women from using the men’s bathroom), then an employer can lawfully bar all men from using the women’s bathroom (and all women from using the men’s bathroom).”