I previously reported that a number of states have challenged the new Enforcement Guidance on workplace harassment issued by the U.S. Equal Employment Opportunity Commission, based on the position that the EEOC took on gender identity issues. As I said then,

“The primary basis of this challenge is the Enforcement Guidance position on gender identity, which the plaintiffs contend takes an unjustifiably expansive reading of the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. In Bostock, the Court held that discrimination based on gender identity violated Title VII but specifically declined to address issues like bathroom and locker room use. The EEOC Enforcement Guidance takes the position that employers are required to allow transgender employees to use the bathrooms associated with their gender identity and that it is unlawful harassment for employers to do otherwise. 

(At the time of my post, the State of Texas had not taken any action against the 2024 Enforcement Guidance.)

But in 2021, Texas successfully challenged older guidance issued by the EEOC on similar grounds. Then, in May of this year, after the 2024 Enforcement Guidance was issued, Texas filed a motion for a preliminary injunction against the 2024 guidance in the old case.

This morning, Law360 reports that a federal judge has denied the Texas motion for procedural reasons. The judge said that he was not expressing an opinion about the merits of the Texas challenge but would not reopen the old case. Meaning that Texas will have to file a new lawsuit if it wants to challenge the 2024 Enforcement Guidance.

I will be very surprised if Texas doesn't go for it.