Addressing the Executive Order on Gender Ideology in the Workplace

President Trump also issued an executive order addressing what he describes as “gender ideology extremism,” which states that it will be US policy “to recognize two sexes, male and female.” The order asserts that gender ideology has “depriv[ed] [women] of their dignity, safety, and well-being,” including by allowing “men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women.” The order defines the male and female sexes based on an “individual’s immutable biological classification”—meaning whether they were born with the reproductive anatomy associated with production of ova or spermatozoa—and directs the Assistant to the President for Legislative Affairs to provide President Trump with proposed bill text codifying the order’s definitions within 30 days. The order further provides that the two recognized biological sexes are not interchangeable and that “sex” is not a “synonym for and does not include the term ‘gender identity.’”
Read the full article
Executive Orders Target DEI Programs and Gender Protections
Morgan Lewis | Jan 2025

Read the text of the Executive Order

Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace
EEOC

EO Impact Zone, A Guide for HR Leaders
The First 100 Days
SHRM

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Importantly, the Order directs 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.”  Pursuant to that guidance, the Order instructs the Attorney General, the Secretary of Labor, and the General Counsel and Chair of the Equal Employment Opportunity Commission (“EEOC”), as well as any other agency heads with enforcement power, to prioritize investigations and litigation to enforce the binary sex mandate. 
President Trump’s Executive Order on Recognizing Two Sexes: Implications for Private Employers
Proskauer | Jan 2025

Signed within hours after Trump took office, the executive order is officially titled, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” It mandates that the federal government recognize only two biological sexes, male and female, as determined at conception. Among other things, the order:

• directs all federal agencies to replace the term “gender” with “sex” in official documents;
• ensures that government-issued identification (like passports) reflect the biological sex assigned at birth;
• requires the Attorney General to guide federal agencies to reverse any policies that allowed gender-identity-based access to single-sex spaces (like bathrooms);
• orders the EEOC, Department of Labor, and other agencies to “prioritize investigations and litigation to enforce the rights and freedoms identified” in the order; and
• rescinds a slew of Biden-era guidance documents, including the 2024 EEOC workplace harassment guidance that, among other updates to its longstanding harassment guidance, incorporated the agency’s analysis of Title VII protections for LGBTQ+ workers based on the Supreme Court’s holding in Bostock v. Clayton County.

What Does the White House’s Executive Order on Gender + New EEOC Acting Chair Mean for Employers? 5 Key Takeaways
Fisher Phillips | Jan 2025

Moving forward, employers may see the EEOC, under the leadership of its newly-designated Chair Andrea Lucas, attempt to roll back enforcement of the rights of transgender individuals under Title VII of the Civil Rights Act. The EEOC may also take the position that allowing transgender individuals to, for example, access bathrooms that conform with their gender identity (not their sex assigned at birth) is itself a discriminatory employment practice. Notably, three of the current EEOC Commissioners released a statement following the issuance of the EO affirming their view—contrary to the Order—that transgender workers are protected by federal law and expressing their intent to continue to advocate on behalf of those workers.
What Private Employers Should Know Following President Trump’s Executive Order On Sex and Gender Identity
Crowell | Jan 2025

All employers — whether or not federal contractors — should carefully consider policies and practices with respect to, for example:

• Restroom access 
• Gender transitions 
• Misgendering
• Gender-identity harassment
• Religious accommodations requests

Finally, despite the administration’s two-sex only policy, several states require employers to provide restroom access to employees based on gender identity while others restrict access to sex assigned at birth.
New Presidential EO Says Federal Government Recognizes ‘Two Sexes’ Only
Jackson Lewis | Jan 2025

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Background On Trump Day One Executive Orders Impacting The LGBTQ+ Community
Human Rights Campaign | Jan 2025

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