On the first day of his presidency, January 20, 2025, President Donald Trump issued two executive orders targeting diversity, equity, and inclusion (DEI) programs in the federal government and stating that the US government will recognize only two sexes—male and female.
On January 22, President Trump followed those executive orders with another order focused on the DEI efforts of federal contractors and private sector employers. This LawFlash discusses the implications of the first two executive orders. The implications of the January 22 executive order will be the subject of a separate LawFlash.
The federal government DEI Executive Order will have little direct impact on private sector employers. In contrast, the executive order on gender will directly impact private employers, as it directs federal agencies like the US Equal Employment Opportunity Commission (EEOC) to prioritize enforcement efforts on protecting single-sex spaces in workplaces and on matters relating to “the binary nature of sex.” It also requires agencies to impose requirements consistent with these priorities “on federally funded entities, including contractors.”
In addition to issuing these and other new executive orders, President Trump rescinded 78 Biden-era executive orders, executive actions, and presidential memoranda, including several pertaining to federal DEI programs and LGBTQ+ issues. Employers should anticipate additional executive actions from the Trump-Vance administration in the weeks and months to come and should review their DEI programs and equal employment opportunity policies to assess any potential legal risk. Employers should also consult counsel to discuss the issues addressed in these executive orders in greater detail.
ORDER TERMINATING FEDERAL GOVERNMENT DEI PROGRAMS
President Trump’s executive order, Ending Radical And Wasteful Government DEI Programs and Preferencing, states that “all Federal employment practices” must “reward individual initiative, skills, performance, and hard work” and may not “under any circumstances consider DEI . . . factors, goals, policies, mandates, or requirements.” The order therefore directs the director of the Office of Management and Budget (OMB) to “coordinate the termination of all” of the federal government’s DEI “mandates, policies, programs, preferences, and activities. . . .”
In line with the order’s goal of eliminating all federal DEI initiatives, within 60 days of the order, all federal agencies must terminate all (1) DEI-related offices and positions, (2) equity-related action plans, actions, initiatives, programs, grants, or contracts, and (3) DEI-related performance requirements for employees, contractors, or grantees. Additionally, within 60 days of the order, each agency must provide the OMB director with lists of, among other things, (1) federal contractors who provide DEI training or DEI training materials to federal agency or department employees (i.e., training vendors hired by government agencies to conduct DEI trainings), and (2) all federal grantees who received federal funding to provide or advance DEI or environmental justice programs.
The order also specifically directs the director of the Office of Personnel Management (OPM) to “review and revise . . . all existing Federal employment practices, union contracts, and training policies or programs” to ensure they are compliant with the mandates of the order.
On the morning of January 22, OPM issued a memo shutting down all federal diversity, equity, inclusion, and accessibility (DEIA) offices and ordering all federal employees in DEI roles to be placed on paid administrative leave by 5:00 pm that day. The memo further requires all agencies to submit a written plan for executing a reduction-in-force action regarding employees who worked in DEIA offices by January 24, 2025.
ORDER REGARDING ‘GENDER IDEOLOGY’
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.’”
Federal Agency Requirements
To that end, the order requires federal agencies to (1) apply the order’s definitions of the terms sex, male, female, men, women, boys, and girls when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications; (2) use the term “sex” and not “gender” in all applicable federal policies and documents; (3) require the use of the two defined sexes on agency forms and official government documents like passports, visas, and federal employees’ personnel records, and to not request gender identity in agency forms; and (4) ensure that federal funds are not used to promote gender ideology (such that taxpayer funds may not be used for gender-transition healthcare).
Further, in order to ensure “privacy in intimate spaces,” the order prevents men from being detained in women’s prisons or housed in women’s detention centers and directs agencies to “tak[e] appropriate action to ensure that intimate spaces designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity.”
Agencies must provide, within 120 days of the order, an update to the OMB that addresses any changes to documents made to comply with the order and “agency-imposed requirements on federally funded entities, including contractors, to achieve the policy of the” order. In doing so, the order requires agencies to impose the order’s requirements onto federal contractors.
Bostock v. Clayton County
The order also addresses the US Supreme Court’s 2020 decision in Bostock v. Clayton County, in which the Court held that Title VII of the Civil Rights Act of 1964, the federal law that prohibits employment discrimination based on sex, also covers discrimination based on sexual orientation and gender identity. This landmark decision expanded the scope of protections for LGBTQ+ employees, requiring employers to ensure that their policies do not discriminate against individuals on the basis of their sexual orientation or gender identity. The order does not purport to infringe upon Title VII, as interpreted by Bostock.
However, in an effort to limit Bostock’s holding to hiring and promotions decisions under Title VII alone, the order directs the US Attorney General to issue guidance to agencies to prevent applying the holding to “sex-based distinctions in agency activities,” such that it does not apply to, e.g., Title IX of the Educational Amendments Act or Section 1557 of the Affordable Care Act. The order also rescinds various prior executive orders and presidential memoranda and all agency guidance inconsistent with the order, including but not limited to guidance discussing the extension of the holding of Bostock to Title IX and the EEOC’s Enforcement Guidance on Harassment in the Workplace, which, among other things, prohibited the misuse of pronouns and required employers to allow employees to use restrooms and changing facilities that corresponded with their gender identity.
The order also states that individuals have the right “to express the binary nature of sex . . . to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964” and requires the Attorney General, US Department of Labor, and EEOC to “prioritize investigations and litigation” to enforce such rights. This interpretation of Title VII may conflict with state laws prohibiting discrimination on the basis of sexual orientation and/or gender identity. For example, an employee could claim they have a right under federal law not to use a co-worker’s preferred pronouns or to share a bathroom with a transgender co-worker, but the exercise of such rights could violate state anti-discrimination laws.
Although there is nothing in the order that requires private employers to modify their existing anti-discrimination policies, including as they pertain to discrimination on the basis of gender identity, it may be difficult for employers to navigate such situations until they receive further guidance from the courts and it becomes clear how the order will be implemented in practice.
IMPLICATIONS FOR EMPLOYERS
- Some employees may be worried about the implications of the executive order on gender. Employers with policies prohibiting discrimination and harassment, including on the basis of gender identity, gender expression, transgender status, and/or non-binary status, can remind employees of those protections, as well as their commitment to a safe, respectful, and inclusive workplace.
- While staying abreast of developments at the federal level, employers should also remain mindful of their compliance obligations under state anti-discrimination laws as well as federal court interpretations of Title VII as applied to gender identity.
- Federal contractors should review any new contracts with the federal government for gender-related conditions.
- Although the current DEI executive order does not apply to private sector employers, the administration has made clear that more is coming. To that end, employers should review their DEI programs, policies, and practices to identify any potential areas of risk.
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