President Trump's "Rescission" Executive Order

Among the executive orders issued by President Trump on January 20, 2025, was one titled Initial Rescissions of Harmful Executive Orders and Actions (the "Order").

The Order's stated purpose is to retract what it describes as the "deeply unpopular" and "radical" practices of President Biden. The Order specifically calls out the "injection of diversity, equity and inclusion" and states that such measures have corrupted our institutions by replacing "hard work, merit and equality."

With that as preface, the Order goes on to list numerous prior executive orders that it is specifically revoking. Among them are:

• Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government);
• Executive Order 13988 of January 20, 2021 (Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation);
• Executive Order 13993 of January 20, 2021 (Revision of Civil Immigration Enforcement Policies and Priorities);
• Executive Order of 13999 of January 21, 2021 (Protecting Worker Health and Safety); Executive Order 14020 of March 8, 2021 (Establishment of the White House Gender Policy Council);
• Executive Order 14031 of May 28, 2021 (Advancing Equity, Justice, and Opportunity for Asian Americans, Native Hawaiians, and Pacific Islanders);
• Executive Order 14055 of November 18, 2021 (Nondisplacement of Qualified Workers under Service Contracts); and
• Executive Order 14075 of June 15, 2022 (Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals) among many others.

The White House also issued an Inauguration Day executive order titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government ("Order 2") which states that it is the policy of the United States to recognize two sexes, male and female, as defined therein. Under Order #2, gender identity shall no longer have a place in any decision-making nor in determinations associated with access to bathrooms, programs, housing or other federally supported operations.

Pursuant to Order 2, laws and practices shall refer to only "sex" and not "gender," and sex is deemed to be determined biologically at the time of conception: male or female. Order 2 additionally directs all agency heads to rescind all contrary guidance and to report an update on the implementation Order 2's requirements within 120 days. In contradiction with Guidance issued by the Equal Employment Opportunity Commission, Order 2 requires all agencies to "give the terms "sex", "male", "female", "men", "women", "boys" and "girls" the meanings set forth in section 2 of [Order 2] when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications."

As described above, many of these now-revoked Executive Orders involve equal opportunity for individuals based on race, gender, gender identity, and sexual orientation. While these orders have been revoked, both state and federal laws continue to prohibit discrimination on the basis of these characteristics. In fact, the United States Supreme Court in 2020 recognized that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity. See Bostock v. Clayton County, 140 S. Ct. 1731. As the Supreme Court specifically stated in Bostock, "The statute's message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

Therefore, employers should continue to enforce their policies prohibiting discrimination, including in accord with the Bostock decision.

This is of course a rapidly evolving area of law, and we will continue to monitor and keep our readers updated.