On January 20, 2025, President Trump issued an executive order titled, "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." The order mandates that federal agencies recognize only two sexes, male and female, based on biological characteristics determined at conception. What makes Trump's Executive Order novel is its unique definition of female and male:
- A "female" means a person belonging, at conception, to the sex that produces the large reproductive cell.
- A "male" means a person belonging, at conception, to the sex that produces the small reproductive cell.
Utilizing these definitions, the order requires federal agencies to "enforce laws governing sex-based rights, protections, opportunities, and accommodations, to protect men and women as biologically distinct sexes," and to "end the Federal funding of gender ideology." For example, the order states that every agency and all Federal employees acting in an official capacity on behalf of their agency "shall use the term 'sex' and not 'gender' in all applicable Federal policies and documents."
But hey, what about Bostock v. Clayton County, 590 U.S. 644 (2020), the recent Supreme Court case that broadened the reach of Title VII to LGBTQ+ employees by ensuring that they could not be discriminated against based on their sexual orientation or gender identity. In Bostock, the Supreme Court held that Title VII, in forbidding discrimination based on sex, also applied to an individual's sexual orientation or gender identity. While the President does not have the power to overturn or change the Supreme Court's holding, President Trump's order does direct the Attorney General to issue guidance to agencies to "correct the misapplication of ... Bostock v. Clayton County (2020) to sex-based distinctions in agency activities." Ultimately as part of enforcing the order, each federal agency must promptly rescind all guidance documents "inconsistent with the requirements of this order."
While Executive orders don't create new laws, they can direct governmental agencies to set rules on how laws are enforced, allocate government resources, and influence how agencies carry out their responsibilities. The rules and regulations promulgated by administrative agencies are important tools for employers to look for insight in implementing rights under Title VII. Of particular interest to employers will be the fate of the EEOC's current Enforcement Guidance on Harassment in the Workplace in light of the President's directive for the agency to reexamine the document.
Moreover, because the order requires federal agencies to "prioritize investigations and litigation to enforce the rights and freedoms identified," we'll likely see a shift in how the EEOC handles sex discrimination charges. Instead of investigating and enforcing discrimination and harassment claims based on gender identity, the EEOC will focus more on "the right to single-sex spaces in workplaces and federally funded entities."
Finally, because the order prohibits the use of federal funds to support gender ideology, federal contractors may be impacted more broadly than other private employers. Such contractors should stay closely tuned to any guidance from the administration that directly impacts obligations under federal contracts.
Employers will know more about how to navigate this uncertain environment once federal agencies update their guidance on sex and gender in the workplace. We will continue to update you on how employers are affected by these changes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
