Workplace Bill Shields Speech on 'Biological Sex,' Strips Employers of 'Business Necessity' Defense

The aptly named "Restoring Biological Truth to the Workplace Act" is looking to make some significant changes to Title VII of the Civil Rights Act of 1964, which is the law that governs workplace discrimination. Essentially, this bill carves out a new protected class status in the workplace, not based on who you are, but based on what you say about biological sex.

The New Protected Speech: What You Can Say Without Getting Fired

Under Section 2, it becomes an illegal employment practice for your employer to take negative action against you—like firing, demoting, or passing you over for a promotion—simply because you expressed views supporting the binary or biological nature of sex. This protection is broad, covering speech, writing, or even depictions, and here's the kicker: it applies whether the expression happens inside or outside the workplace. So, if you post something on social media after hours or have a conversation at the water cooler about sex being strictly binary, your boss can't use that as grounds for retaliation.

This section also protects employees who ask to use, or actually use, single-sex areas (like bathrooms or changing rooms) where privacy is expected. If an employee insists on using the facility that aligns with their biological sex, the employer cannot retaliate against them for that request or usage. For an HR department, this is a massive change, as it limits their ability to manage workplace conduct and facility use policies aimed at inclusion or non-discrimination.

Removing the Employer’s Safety Net

Perhaps the most impactful part of Section 2 is what it takes away from the employer. If an employer is accused of taking action against an employee based on this protected speech or facility usage, they can no longer use standard legal defenses. They can’t claim the restriction was “job-related” or “consistent with business necessity.” Those defenses are crucial for employers trying to maintain a functional, non-hostile workplace. For instance, if an employee’s protected speech about biological sex becomes disruptive or harassing to colleagues, the employer’s hands are tied—they can’t argue that addressing the disruption is a “business necessity.” This creates an almost absolute shield for the protected speech, regardless of its impact on the work environment.

Who Benefits and Who Bears the Cost?

The clear beneficiaries are employees who hold and express views aligning with a binary understanding of biological sex; they gain explicit protection from employment retaliation. However, this bill introduces significant risks for others. For employers, the removal of the “business necessity” defense creates a massive litigation risk and severely limits their ability to enforce conduct rules, potentially opening the door to hostile work environments. Consider a small business owner who now has to navigate a situation where protected speech about biological sex makes other employees, particularly those who are transgender or non-binary, feel targeted or unsafe. The employer has lost their primary legal tool to manage that conflict.

Furthermore, Section 3 strengthens existing anti-retaliation rules by explicitly protecting anyone who opposes or reports a violation of these new provisions. While strengthening anti-retaliation is generally a good thing, in this context, it primarily serves to reinforce the enforcement of the newly established protections for speech about biological sex, making it easier for employees to challenge employers who attempt to enforce policies that might conflict with the bill's intent.

In short, this bill mandates that employers must protect specific viewpoints on sex and gender, even if those viewpoints clash with the employer’s need for a productive, harassment-free workplace. It effectively trades the employer’s ability to manage conduct for the employee’s right to express a specific biological view, even off the clock.