Within hours of taking office for a second term, President Trump issued a flurry of executive orders and actions on topics ranging from immigration and climate change to revoking DEI mandates. While many of these actions are likely to face legal challenges — in fact, several major lawsuits have already been filed — both federal and private-sector employers should take note of an executive order limiting the definition of “sex” to either “male” or “female” and rejecting the concept of “gender identity” for sex-based employment protections.
While these declared changes will have a direct impact on those employed in federal agencies and those working as federal contractors, the order also signals that this new policy is intended to quickly apply to private employers as well.
‘Sex’ redefined
On January 20, 2025, Trump signed an executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” declaring that the U.S. government will only recognize two sexes: male and female. The order states that “efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.” If further states, “This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts. Invalidating the true and biological category of ‘woman’ improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept.”
Notably, the order redefines “sex” and other related definitions for purposes of all executive interpretation and application of federal law and policy.
- “Sex” shall refer to an individual’s immutable biological classification as either male or female. “Sex” is not a synonym for and does not include the concept of “gender identity.
- The terms “gender ideology” and “gender identity,” which are also defined, are rejected as the basis for any sex-based rights. For example, the order states, “When administering or enforcing sex-based distinctions, 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.”
Order at odds with U.S. Supreme Court’s Bostock decision
From a legal perspective, this executive order is at odds with the U.S. Supreme Court precedent in Bostock v. Clayton County (2020), which addressed Title VII. Accordingly, the order charges the Attorney General to immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock to sex-based distinctions in agency activities. In addition, it requires the attorney general to issue guidance and assist agencies in protecting sex-based distinctions (not gender-based ones), which are explicitly permitted under Constitutional and statutory precedent.
Federal policy, federal enforcement?
The order is not limited to federal agency action, however. While it requires the attorney general to issue guidance to “ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964,” it also charges the attorney general, the secretary of labor, the general counsel, the chair of the Equal Employment Opportunity Commission, and each other agency head with enforcement responsibilities under the Civil Rights Act to “prioritize investigations and litigation to enforce the rights and freedoms identified.” The order therefore requires the head of the EEOC to prioritize enforcement efforts in line with its objective to ensure women the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces.
Andrea Lucas, currently the sole Republican commissioner on the EEOC, was appointed the acting chair of the EEOC on January 21, 2025. Lucas issued a statement with her appointment that clearly signals the EEOC’s intent to carry out the objectives of the Defending Women executive order, as well as other agency priorities on the horizon. This statement is instructive for employers across the nation, as it provides insight into the civil rights enforcement agency’s agenda for the coming year.
Lucas stated, “I look forward to restoring evenhanded enforcement of employment civil rights laws for all Americans. In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.” She further indicated a commitment to “ensuring equal justice under the law and to focusing on equal opportunity, merit, and colorblind equality.”
As part of this executive order, Trump required each agency head to promptly “rescind all guidance documents inconsistent” with the order. This specifically included the EEOC’s “Enforcement Guidance on Harassment in the Workplace” issued in April 2024. This guidance, in accordance with Bostock, had stated that the sex discrimination protections of Title VII covered pregnancy, childbirth, sexual orientation, and gender identity. In its prior guidance, the EEOC made clear that sex-based discrimination under Title VII included employment discrimination based on sexual orientation or gender identity, including how that identity is expressed.
When the EEOC’s “Enforcement Guidance on Harassment in the Workplace” was originally issued, the new acting chair of the EEOC had issued a dissenting “Statement on EEOC Enforcement Guidance on Harassment in the Workplace.” Lucas’s dissenting statement rejected the EEOC’s guidance, which stated both that harassing conduct under Title VII included “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity,” and “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.” Lucas stated that in issuing this prior guidance, the EEOC ignored biological reality and dismissed the sex-based privacy needs of women. She added, “It is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms or other similar facilities which implicate these significant privacy and safety interests.”
Possible impact on private employers
So what does this mean for private, non-governmental employers?
- Be prepared for significant changes to the landscape of Title VII and what sex-based discrimination entails. The EEOC has been directed to rescind its prior guidance that defined or described sex discrimination and harassment as including anything other than biological sex. Not only will the EEOC most likely rescind this prior guidance (either entirely or in part), but the EEOC will almost certainly issue new guidance on this issue, which will define sex in accordance with Trump’s executive order. Employers can expect that newly issued guidance will most likely reflect Lucas’s sentiments on these issues. Moreover, the EEOC has been charged with prioritizing investigations and litigation to enforce the rights and freedoms of biological sex and the right to single-sex spaces in workplaces.
- Employers may also see an uptick in what has previously been referred to as “reverse” discrimination claims — for example, claims of discrimination or harassment from those previously considered part of the majority (like heterosexuals or Caucasians). The U.S. Supreme Court, in Ames v. Ohio Dept. of Youth Servs., Case No. 23-1039, will soon decide whether those individuals from the “majority” should be held to a different standard when alleging claims of discrimination. But, based on Lucas’s expressed sentiment, it is clear the EEOC is signaling that it will prioritize cases from “majority” claimants in its efforts to “root out unlawful DEI-motivated race and sex discrimination” and enforce “colorblind equality.”
