Q & A: Withrow v. United States, et al.

Question 1

Until recently, trans and intersex federal employees were allowed to use the restrooms that best accord with the gender they live as every day without issues. What has changed under the Trump administration?

Accepted Answer

On Day One of President Trump’s second term, he issued Executive Order (EO) 14168, which (among other things) directs agencies of the federal government to exclude transgender and intersex people from single-sex spaces that align with their gender identity. It requires agencies of the Executive Branch to “tak[e] 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.” Fewer than ten days later, and without notice, comment, or deliberation, the Office of Personnel Management (OPM), issued a memorandum directing agencies to ensure that federal facilities like restrooms are “designated by biological sex” and ordering each agency to take “prompt actions” to end agency programs that “reflect gender ideology.”

Question 2

What impact have the executive order and the OPM memo had on trans federal employees across the country?

Accepted Answer

Agencies across the federal government, including the Department of Defense and National Guard Bureau, have implemented the OPM memo by instating policies governing restroom access. As a result, transgender and intersex employees across agencies of the federal government have been prohibited from using restrooms that align with their gender identity. If transgender or intersex employees choose to disregard the requirements set forth in the OPM memo and agency policy, they put their employment in jeopardy and risk discipline or other punishment.

Question 3

Do we know how many trans and intersex federal employees there are?

Accepted Answer

While the precise number of transgender and intersex federal employees is unknown, according to the U.S. Office of Personnel Management’s 2023 Federal Employee Viewpoint Survey Results, 2,421 federal employees identified as transgender. The survey’s 39 percent response rate suggests that there were approximately 6,200 transgender federal employees as of 2023. Likewise, the United Nations estimates that between 0.05% and 1.7% of the population is born with intersex traits, meaning that there may be anywhere between 800 and 27,000 federal employees with intersex traits.

Question 4

What are the ACLU and its litigating partners arguing in this case?

Accepted Answer

We are arguing that the DOD and National Guard policies (and similar policies at other federal agencies implementing the Executive Order) violate Title VII of the Civil Right Act of 1964 because they discriminate against transgender and intersex people in violation of the law’s prohibition on sex discrimination. We also allege that OPM ‘s new policy is arbitrary and capricious under the Administrative Procedure Act.

Question 5

Who are the ACLU’s litigating partners in this lawsuit?

Accepted Answer

Democracy Forward, the ACLU of the District of Columbia, the ACLU of Illinois, among others.

Question 6

Who is the named plaintiff in this lawsuit?

Accepted Answer

We represent LeAnne Withrow, a civilian employee of the Illinois National Guard who has honorably served her country for nearly 15 years and has been repeatedly recognized for her outstanding service. For the past four years, her work as Lead Military and Family Readiness Specialist has focused on supporting Illinois National Guard servicemembers and their families. Almost a decade ago, Ms. Withrow came out as a transgender woman, continuing to serve her country through her transition, with an unwavering commitment to the soldiers, families, and veterans with whom she works. As Ms. Withrow has stated about her service: “I want to help soldiers, families, veterans—and then I want to go home at the end of the day. At some point in between, I will probably need to use the bathroom.” And for years, she was able to do so, without issue. Because of the Trump administration’s new policy, however, she can no longer use restrooms that align with her gender identity, as that could result in discipline or even putting her employment at risk. As a result, most days when she goes to work, Ms. Withrow plans ahead to minimize her need to use the restrooms during her workday. She skips breakfast and skips lunch and drinks as little coffee and water as possible. The harm she’s experiencing is not only unfair—it’s sex discrimination.

Ms. Withrow is the lead plaintiff, on behalf of a class of all federal trans and intersex workers who are employed by the federal defendants and their agencies who have been prevented from using restrooms that align with their gender identity based on the implementation of the Executive Order.

Question 7

What should other federal employees who are impacted by the administration’s policies on restrooms do while this case is pending?

Accepted Answer

Because we are proceeding as a class action, you likely do not need to be a named plaintiff to benefit from the relief we are seeking. That said, we are interested in hearing from affected transgender and/or intersex employees across federal executive agencies, so please be in contact if you would like to tell us about your experience.

Question 8

How can we all best support trans people at this time?

Accepted Answer

We need people to speak up. Contact your elected officials in Congress and at the state and local level and demand they push back against the Trump administration's anti-trans agenda. Let your representatives and senators know that you expect them to oppose these attacks and that you will hold them accountable if they fail to do so. States and cities should be making clear that trans people still belong and still have legal protections. And states and private entities should resist cooperating with this administration’s anti-trans agenda.

Because these anti-trans attacks rest on lies and misinformation about trans people, everyone has a role to play in educating the people in their lives about the facts. Speak up and out for trans people wherever you encounter the harmful messaging used by the Trump administration that treats trans people as a threat just for existing.

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