Within the last two months, both the Equal Employment Opportunity Commission (EEOC) and the armed services have followed Trump Administration directives to narrow or eliminate protections for transgender individuals.
EEOC Withdraws Lawsuits. Aligning with Executive Order 14168 (Jan. 20, 2025) announcing that the federal government will recognize only male/female as the two "immutable biological classifications," the EEOC has deprioritized transgender discrimination charges and moved to dismiss at least seven lawsuits brought on behalf of transgender employees. The move appears to come into conflict with the Supreme Court's 2020 Bostock v. Clayton County decision, which found that that Title VII of the Civil Rights Act of 1964 protected employees against discrimination based on sexual orientation and/or gender identity. The pivot is in stark contrast to the broad protections offered to transgender individuals under the Biden Administration, as well as the EEOC's "Enforcement Guidance on Harassment in the Workplace" (Apr. 29, 2024), which, according to EEOC Acting Chair Andrea Lucas, cannot be rescinded without a majority vote of the Commission, but she nonetheless opposes.
As the EEOC moves to dismiss the lawsuits for being "inconsistent" with President Trump's executive order "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government," one district court in Michigan noted that the EEOC's apparent withdrawal from transgender discrimination litigation seems incompatible with the EEOC's mission, but that courts cannot force the EEOC to file or continue these lawsuits.
DOD Bans Gender Dysphoria. Meanwhile, in February 2025, the Department of Defense issued a ban that disqualifies any enlisted and prospective individual who has a current diagnosis or history of, or exhibits symptoms consistent with, gender dysphoria. The DOD justified the ban by stating that "[s]ervice by these individuals is not in the best interests of the Military Services and is not clearly consistent with the interests of national security." The ban reverses the guidance under President Biden, who had allowed transgender individuals to openly serve in the armed services. The DOD's memorandum also definitively states that it "only recognizes two genders: male and female," and all active transgender military personnel will be removed from service.
Ballard Spahr's Labor and Employment Group continues to advise employers on labor, employment, and policy issues. We will keep monitoring developments under the new administration and their impact on employers. Please contact us if we can assist you with these matters.
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