What Private Employers Should Know Following President Trump’s Executive Order On Sex and Gender Identity

The first day of the Trump Administration included the issuance of 26 executive orders(“EOs”), the most in modern presidential history. Among these EOs, President Trump signed the Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government Executive Order (the “EO” or “Order”). While focused on federal policy, the Order has broad implications for private sector employers.

The EO declares that “[i]t is the policy of the United States to recognize two sexes, male and female.” The Order includes several definitions, including a definition of “sex” that explicitly excludes “gender identity” and defines “sex” as “an individual’s immutable biological classification as either male or female.” Among other things, the Order:

• Directs federal agencies to use these definitions when interpreting or applying statutes, regulations, or guidance;
• Declares that the Biden Administration’s position that the Supreme Court’s decision in Bostock v. Clayton County(2020) requires gender identity-based access to single-sex spaces (g., bathrooms) is wrong;
• Directs the Attorney General to immediately issue guidance to agencies to correct the misapplication of Bostock to sex-based distinctions in agency activities;
• Directs the Attorney General to issue guidance to ensure the binary nature of sex and to protect the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964 (the “Civil Rights Act”);
• Directs the Attorney General, the Secretary of Labor, the General Counsel and Chair of the Equal Employment Opportunity Commission (the “EEOC”), and each agency head with enforcement responsibilities under the Civil Rights Act to prioritize investigations and litigation to enforce the rights and freedoms identified in the Order;
• Directs the Assistant to the President for Legislative Affairs to present to the President a proposed bill codifying the definitions in the Order, including the definition of “sex,” within 30 days;
• Directs agencies to submit an update on implementation of the Order to the President within 120 days, including “agency-imposed requirements on federally funded entities, including contractors, to achieve the policy of this order”; and
• Directs agency heads to promptly rescind all inconsistent guidance documents (or inconsistent parts of guidance documents), including the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace.

Moving forward, employers may see the EEOC, under the leadership of its newly-designated Chair Andrea Lucas, attempt to roll back enforcement of rights of transgender individuals under Title VII of the Civil Rights Act. The EEOC may also take the position that allowing transgender individuals to, for example, access bathrooms that conform with their gender identity (not their sex assigned at birth) is itself a discriminatory employment practice. Notably, three of the current EEOC Commissioners released a statement following the issuance of the EO affirming their view—contrary to the Order—that transgender workers are protected by federal law and expressing their intent to continue to advocate on behalf of those workers.

Without regard to the EEOC, we anticipate that agencies—in furtherance of the EO’s objectives—may impose similar restrictions on federal contractors. Of note, and in direct conflict with the EO’s biology at birth orientation, many state and local jurisdictions include transgender status, gender identity, and gender expression as protected statuses in their anti-discrimination laws. This dissonance between the EO’s directives and protections extended by state and local laws to gender identity and transgender status will undoubtedly expose private employers to uncertainty and risk over time. That said, Title VII of the Civil Rights Act, and the case law interpreting it, remain the final say at the federal level regarding the interpretation of “sex” (including whether “sex” includes transgender status, gender identity, and/or gender expression) unless and until the statute is amended. For now, employers should review their policies and practices with particular attention to transgender status, gender identity, and gender expression, stay vigilant on legal developments, and consult with legal counsel as needed to mitigate risk.