04-30-2025
The Utah, West Virginia, and Wyoming legislatures have enacted laws recognizing gender as solely binary—male and female—and unchangeable, joining Iowa and other states that have passed similar laws. A new federal executive order defined sex as binary and immutable earlier this year. The EEOC chair has indicated her desire to rescind prior agency guidance related to gender identity once the agency has a quorum again.
In Utah, transgender and nonbinary individuals must use the bathrooms, locker rooms, and showers that match the gender identity they were assigned at birth. “Females” are defined as “individual[s] whose biological reproductive system[s]… function in a way that could produce ova.” Likewise, males are defined as having the biological system that “functions to fertilize the ova of a female.” The West Virginia and Wyoming laws similarly define males and females based on their reproductive systems’ ability to use “ova for fertilization” or “sperm for fertilization.” However, the West Virginia law does require reasonable accommodation, like a single-occupancy restroom or changing room, for people who are unwilling or unable to use the facilities for their sex assigned at birth.
These laws and the executive order are seemingly at odds with Bostock v. Clayton County. The Supreme Court case recognized sexual orientation and gender identity as protected from discrimination under Title VII of the Civil Rights Act. Based on that case, courts have interpreted the law as protecting an individual’s right to use a bathroom that aligns with their gender identity and to have others use the pronouns that correspond to their gender identity. Employers in these states should consult with legal counsel regarding their obligations.