On his first day in office, President Trump issued an Executive Order titled, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The order defines “sex” as each “individual’s immutable biological classification as either male or female,” and calls for eradicating “gender ideology,” which, according to the order, “includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex.”

Removing “Gender Ideology” from Federal Agencies

To implement these positions, the order requires all federal agencies and employees to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to men and women as biologically distinct sexes.” It directs federal agencies to “remove all statements, policies, regulations, forms, or other internal and external messages that promote or otherwise inculcate gender ideology” and to “cease issuing such statements, policies, regulations, forms, communications, or other messages.”

We expect the new administration, including the Equal Employment Opportunity Commission (EEOC), to act swiftly to comply with these directives. Indeed, since the order was issued, the EEOC has removed various informational pages from its website, including fact sheets and technical assistance documents relating to the EEOC’s efforts to enforce Title VII in a manner that protects LGBTQ employees.

Employers should anticipate there will be changes to the filing instructions associated with the EEO-1 form. While the form previously included only binary options for employers to report the sex of their employees, employers that chose to do so could include non-binary employees by using the comment section of the form. Moving forward, that option will likely be eliminated.

Rescinding EEOC Enforcement Guidance on Harassment in the Workplace

The order requires the head of each federal agency to rescind specific guidance documents, including the EEOC’s Enforcement Guidance on Harassment in the Workplace (Enforcement Guidance). That document advised that Title VII prohibits discrimination based on sexual orientation or gender identity, stating in pertinent part:

Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity. Accordingly, sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

The Enforcement Guidance also provided that employers were not required to grant accommodations for employees’ religious beliefs (for example beliefs condemning homosexuality) if doing so would create a hostile work environment. As stated in the Enforcement Guidance, “[w]hile an employer must accept some degree of worker discomfort when providing an accommodation for religious expression under Title VII, it need not accept the burdens that would result from allowing actions that demean or degrade […] members of its workforce.” We expect that at least portions of the Enforcement Guidance will be rescinded in the future, permitting some employers to claim that religious beliefs (or the religious beliefs of their employees) prevent them from abiding by policies that protect the rights of LGBTQ employees. It is likely that this issue will be heavily litigated.

The EEOC has not yet taken formal action to rescind the Enforcement Guidance, but we expect it will make efforts to do so in the near future. Indeed, in her first statement as acting chair of the EEOC, Commissioner Andrea Lucas noted that her priorities will include “defending the biological and binary reality of sex and sex related rights, including women’s rights to single-sex spaces at work.” Commissioner Lucas has also acknowledged that while she lacks the authority to unilaterally rescind the Enforcement Guidance, she remains opposed to a number of provisions relating to gender identity.

Measures recently taken by the Department of Justice (DOJ) indicate it will no longer defend the Enforcement Guidance from attacks in court. Indeed, in State of Tennessee v. EEOC, the DOJ recently moved to vacate an oral argument pertaining to a motion filed by the plaintiffs that sought to enjoin the Enforcement Guidance.¹ While the DOJ had previously defended the Enforcement Guidance in this case, the motion to vacate indicates that it has changed its position in light of the president’s executive order.²

Single-Sex Spaces

The executive order directs the U.S. attorney general to issue guidance “to ensure the freedom to express the binary nature of sex and the right to single-sex spaces,” such as bathrooms, “in workplaces and federally funded entities covered by the Civil Rights Act of 1964.” The order further requires the attorney general, the secretary of labor, the general counsel and chair of the EEOC, and the heads of each of the other agencies with enforcement responsibilities under the Civil Rights Act to “prioritize investigations and litigation to enforce the rights and freedoms identified” in this order.

Similarly, the order directs the attorney general to “immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020)” to the extent that it has been interpreted as requiring “gender identity-based access to single-sex spaces.” Although Bostock did not actually address the issue of “single-sex spaces,” such as bathrooms and locker rooms, the executive order’s intent to restrict facilities to one of the two recognized sexes is clear. Again, we expect that these issues will likely be subject to significant litigation moving forward. Nevertheless, it is important to recognize that discrimination against transgender and non-binary/gender non-conforming individuals remains illegal under federal law, as well as under many state and local laws.

With the federal government’s stated priority of ensuring access to single-sex facilities, employers may nevertheless find themselves facing potentially conflicting obligations under federal and state law and are advised to consider conducting a review of existing gender-identity related policies and practices with counsel.

Eliminating the Use of Federal Funds to Promote Gender Ideology and Other Views that Are Inconsistent with the Order

Of particular concern to private employers with government contracts, the order prohibits the use of federal funds to promote gender ideology and directs agencies to ensure that grant funds are not used to advance this ideology. The order requires the director of the Office of Management and Budget to implement “agency-imposed requirements on federally funded entities, including contractors, to achieve the policy of this order.”

This portion of the order could directly affect millions of individuals employed by government contractors and grant recipients throughout the country.

Implications for Employers

We recommend that both public and private employers review their current inclusion, equity, and diversity (IE&D) programs and policies under privilege in light of this executive order and be on alert for any additional orders. Littler will continue to monitor this issue to keep readers apprised of any new orders or changes in existing policy.