Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—New suit challenges executive order, new federal policies restricting bathroom access based on ‘biological sex’, (Nov 21, 2025)

By Brandi O. Brown, J.D.

The putative class action was brought by a transgender civilian federal employee, who was also in the National Guard for 13 years.

A federal civilian employee of the Illinois National Guard, who previously served for 13 years as a soldier, during which time she came out as transgender, has filed a lawsuit in response to changes made following an executive order issued by President Trump during his initial days in office.

Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” was issued on January 20, 2025. Although prior to that time the employee had used the same restroom as other female employees, she alleges that since then she has had to make modifications because of OPM’s direction to agencies that their employees must be denied access to restrooms that are consistent with their gender identity. Agencies across the federal government, she alleges, including the Department of Defense and National Guard Bureau, have implemented the OPM Memorandum, “instating policies that prohibit transgender and intersex federal employees from using restrooms consistent with their gender identity.”

Limited access to restrooms. Therefore, she alleges that while before she (and other transgender and intersex employees) used restrooms consistent with their gender identity, including those at her workplace, other federal buildings, and other National Guard facilities, without incident, she is now forced to minimize her restroom usage. She alleges that there is only one single-user restroom she can use at work, whereas some of the other buildings at Camp Lincoln, where she is based, do not have any single-user restrooms she can use. Of the 12 other National Guard facilities she must visit as part of her job, she adds, eight of them also do not have single-user restrooms. One of those facilities is more than six miles away from the nearest town, she alleges.

She alleges that, as a result, she has drastically altered her liquid and food consumption in an attempt to minimize her need to use the restroom.

Title VII and APA violations. She contends that the “disparate treatment of transgender and intersex employees constitutes discrimination in terms and conditions of employment on the basis of sex in violation of Title VII” and that the “issuance of the OPM Memorandum and the withdrawal of prior GSA directives regarding access to restrooms are final agency actions that are arbitrary and capricious in violation of the Administrative Procedure Act (APA), including because each agency failed to account for federal employees’ reliance interests and failed to consider existing federal standards.” She also alleges that each action violates the APA because it is contrary to law, including Title VII.

Along with other class members, she seeks “declaratory and injunctive relief to set aside the unlawful actions of Defendants, remediate violations of their civil rights, and allow them to use restroom facilities consistent with their gender identity.”

The lawsuit was filed in D.C. federal court; the case is No. 1:25-cv-04073.

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