Executive Order on Gender Identity
By Allison Sues, JD, Senior Employment Law Counsel
Published February 18, 2025
On January 20, 2025, President Trump issued Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” stating that “[i]It is the policy of the United States to recognize two sexes, male and female.” The Order directs all federal agencies to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.”
Q: Does this Order change a transgender employee’s federal protection from workplace discrimination?
No. The Supreme Court held that Title VII’s prohibition against sex discrimination includes discrimination based on gender identity. In 2020, a 6-3 majority decided Bostock v. Clayton County, which held that discrimination against someone because they are LGBTQ is unlawful sex discrimination. The opinion, penned by Justice Gorsuch, a Trump appointee, stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Though Bostock is still good law, the EEOC’s new Acting Chair issued a press release on January 28, 2025 that announced the EEOC’s intention to “roll back the Biden administration’s gender identity agenda” and prioritize litigation that “defend[s] the biological and binary reality of sex.” Consistent with this announcement, the EEOC recently filed a joint motion to dismiss a lawsuit it was pursuing in Alabama on behalf of a nonbinary male employee who alleges his employer terminated him because of his sexual orientation and gender identity after his boss saw him outside of working hours wearing capri joggers, pink nail polish, and box braids. The motion to dismiss cited Executive Order 14168 as a reason for the voluntary dismissal request. The EEOC has similarly moved to withdraw its cases alleging transgender discrimination in Illinois, New York, and California.
It is important to note that the Supreme Court has the final say on what a Congressional Law means and an Executive Order or the EEOC’s agenda cannot change a law passed by Congress or an interpretation of that law made by the Supreme Court. However, Executive Order 14168 will likely be used to limit the scope of the Bostock decision (discussed more below). Employers should keep in mind that many state and local laws, including the Illinois Human Rights Act, prohibit workplace discrimination because of an employee’s gender expression or identity. Further, an employee may be able to file a private suit asking the Court to enforce federal rights.
Q: Does the Order change a transgender employee’s federal protection from workplace harassment, including alleged claims of coworkers not using their preferred pronouns or employers not allowing them access to their preferred restroom?
This answer is even murkier. Bostock held that terminating an employee’s employment for being transgender is unlawful discrimination but explicitly stated that its holding does not touch on whether other workplace policies – such as sex-segregated “bathrooms, locker rooms, or anything else of the kind” – could also violate Title VII. Under the Biden administration, the EEOC instructed that deliberately misgendering transgender employees or denying them access to their preferred bathroom constitute unlawful harassment. However, Executive Order 14168 and the EEOC’s recent press release both explicitly disagree with this extension of Bostock.
Q: So, what is the takeaway?
Employers’ decisions like hiring, promoting, terminating, and disciplining should be based only on work-related factors such as qualifications and job performance. If these decisions are based on an employee’s gender identity, the decision remains unlawful under both Illinois and Federal law. As for issues relating to workplace harassment, employers should continue to foster a workplace culture of kindness and inclusivity for all employees. However, employers who field requests from employees asking to not have to use a coworker’s preferred pronouns or to not have to share a bathroom with a transgender employee have become more complicated considering Executive Order 14168, as well as the Supreme Court’s 2024 decision Groff v. DeJoy, which significantly heightened an employer’s burden in denying employees’ requests for religious accommodation. (Read our earlier Groff case article.)
We will continue to track developments in this area. HR Source members can contact us through the HR Hotline Online or at 800-448-4584 to discuss this sensitive and evolving area of the law.