State and federal discrimination laws provide protections amid the Trump Administration's moves against "woke gender ideology" and the president's executive orders
Key Takeaways
- President Trump's orders targeting "woke gender ideology" do not change existing employment protections for LGBTQ employees, though threats to federal funding remain ambiguous.
- Title VII of the Civil Rights Act and many state laws explicitly protect LGBTQ employees from discrimination based on sexual orientation, gender identity, or expression.
- Employers should ensure LGBTQ inclusion and remain vigilant against workplace harassment beyond preventing discrimination.
Even as the early days of the second Trump Administration suggest that eliminating protections for LGBTQ employees is a priority, employers must remain mindful of their continuing obligations to all employees, including their LGBTQ workers. The Administration has issued numerous orders and taken other steps to strip these workers of the protections they hold under federal law and to erase transgender and nonbinary identities from federal regulations. In spite of these actions, however, LGBTQ employees remain protected under state and federal discrimination laws. Employers not only must continue to comply with those laws by providing legal protections to LGBTQ workers—they should also be mindful of the potential for heightened harassment and discrimination against this vulnerable group in the current climate.
This alert explains the Trump Administration's recent actions pertaining to LGBTQ workers, and transgender and nonbinary workers in particular; summarizes the co-existing legal protections for these workers; and provides guidance for employers seeking to understand their obligations toward this segment of their workforce.
Trump Administration's Actions on LGBTQ Rights
President Trump kickstarted his second term with a barrage of over fifty Executive Orders. On his first day in office, he signed the Executive Order Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. This order criticizes those who "deny the biological reality of sex" and states that efforts to recognize identities outside of biological male and female "fundamentally attack women by depriving them of their dignity, safety, and wellbeing." It further opines that the practice of recognizing gender identity has a "corrosive impact . . . on the validity of the entire American system."
The Order establishes that the United States' policy is to recognize only two sexes, male and female, and states that the Executive Branch will enforce all laws in accordance with this decree. It directs all federal agencies to comply with its definitions and to incorporate them into all of their work, including with regard to government-issued identification and federal employee personnel records. The Order also instructs all agencies to remove all policies, statements, or communications that do not align with the Order's definitions. The Order criticizes the prior administration's interpretation of the Bostock v. Clayton County Supreme Court decision, which established that gender identity was a protected class under Title VII of the Civil Rights Act, and it directs the Attorney General to issue guidance to agencies to "correct the misapplication" of that decision. Finally, in addition to other provisions targeting correctional facilities and rape shelters, the Order revokes a long series of guidance documents intended to prevent harassment and discrimination against LGBTQ children in schools.
Although the Order primarily affects the operation of federal agencies, it also states that federal funds cannot be used to promote "gender ideology," and it directs agencies to review grant conditions to ensure such funds are not used in violation of the Order. It is unclear how agencies are meant to implement this directive, or what conduct by a grantee may be viewed as violating the Order. For grantees, contractors, and other recipients of federal funds, however, the reference to "federal funds" raises a concern that agencies could cut off funds for entities they believe do not align with the Order, in an echo of the DEI-related Executive Orders that threaten federal funding for entities engaged in DEI work.
Following the Order, the EEOC's newly appointed chair announced that one of her enforcement priorities for the agency is to "defend the biological and binary reality of sex and related rights, including women's rights to single-sex spaces at work." The EEOC then stated that EEOC charges based on sexual orientation or gender identity must be escalated to EEOC headquarters for review to ensure compliance with the Trump Administration's position. It has also been reported that the EEOC has directed its employees to halt the processing of all claims alleging sexual orientation or gender identity-based discrimination.
Outside of the employment arena, the Trump Administration has issued several other orders targeting transgender and nonbinary individuals in multiple sectors, including the military and schools. These Executive Orders characterize transgender and nonbinary individuals as morally inferior and lacking "commitment to an honorable, truthful, and disciplined lifestyle." The administration also issued an executive order targeting gender-affirming care, describing such care as "mutilation."
Existing Legal Protections for LGBTQ Employees
While the recent flurry of Executive Orders is undeniably destabilizing for LGBTQ employees, existing protections against workplace discrimination remain in place.
Title VII
In Bostock v. Clayton County, Georgia, the U.S. Supreme Court ruled Title VII's ban on sex-based discrimination prohibits discrimination based on sexual orientation. It also ruled Title VII prohibits discrimination against transgender claimants based on their transgender status. Writing for a 6-3 majority, Justice Gorsuch wrote, "When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex [in violation of Title VII]."
By finding Title VII bars workplace discrimination on the basis of sexual orientation and gender identity, the Court's decision effectively extended that prohibition to state and local jurisdictions—many of which also have their own protections for LGBTQ employees. For example, Oregon's Equality Act and Washington's Washington Law Against Discrimination (WLAD) protect individuals from discrimination based on sexual orientation and gender identity in employment and other areas. California's Fair Employment and Housing Act (FEHA) offers similar protections; additionally, California requires that its mandatory biennial sexual harassment training include information about preventing abusive conduct and harassment based on sexual orientation, gender identity, and gender expression. As with the protections conferred by Title VII, these laws remain in effect.
Americans with Disabilities Act
In Williams v. Kincaid, the 4th Circuit held that gender dysphoria can qualify as a disability under the Americans with Disabilities Act (the "ADA"). Employers in Maryland, North Carolina, South Carolina, Virginia, and West Virginia remain bound by this ruling.
In its decision, the Court held that gender dysphoria can be distinguished from the now-obsolete diagnosis of "gender identity disorder," which is not covered under the ADA, and clarified that following a shift in medical understanding, "we and other courts have thus explained that a diagnosis of gender dysphoria, unlike that of 'gender identity disorder,' concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender." Importantly, in Williams, the 4th Circuit did not find or suggest that being transgender is itself a disability, but rather, that gender dysphoria can be disabling, meriting protection under the ADA, such as a right to reasonable accommodation and protection against discrimination.
Although the Supreme Court declined to weigh in on this matter, as the first federal appellate decision of its kind, Williams had—and will continue to have—a significant impact on employers (covered by Title I of the ADA) and places of public accommodations (covered by Title III of the ADA). Additionally, employers should also note that some state and local laws already provide protections for individuals with gender dysphoria. For example, the New York State Human Rights Law prohibits discrimination on the basis of gender dysphoria, and both the New York State and City Human Rights Law provide that the refusal to provide reasonable accommodations for persons with gender dysphoria constitutes disability discrimination, and that harassment on the basis of a person's gender dysphoria is considered to be harassment on the basis of disability.
EEOC Guidance
The U.S. Equal Employment Opportunity Commission has recently pulled down a number of online resources on LGBTQ worker protections—among them several informational pages on Bostock and a fact sheet explaining a decision in which the EEOC held that denying an employee access to a bathroom corresponding to their gender identity constituted discrimination based on sex—but that does not mean the laws these documents discuss are any less enforceable.
The EEOC's Enforcement Guidance on Harassment in the Workplace (the "Guidance"), which was finalized in early 2024, remains on the site. Despite the Executive Order on Gender Ideology's call to rescind parts of the Guidance that are inconsistent with the Order, any modification to the Guidance must first be approved by a majority vote of the commission. (At the time Trump took office, Democratic appointees were the EEOC majority and slated to retain majority voting power until at least 2026. In a legally questionable move, however, the president terminated two Democratic appointees prior to the end of their terms, leaving the Commission without a quorum until their seats are filled.)
The Guidance emphasizes that sex-based harassment includes harassment based on gender identity and expression, including the repeated and intentional use of the wrong pronoun or harassing conduct directed at an individual who does not present in a manner that would stereotypically be associated with that person's sex. Although Bostock pointedly avoided addressing the use of bathrooms, the Guidance explicitly states that the denial of access to a bathroom or other sex-segregated facility consistent with an individual's gender identity also qualifies as sex-based harassment in violation of Title VII.
What Should Employers Do?
The Executive Orders and other actions have created confusion for employers, particularly for federal contractors, grantees, and other recipients of federal funds, while also creating immense distress and fear among LGBTQ employees and employees with LGBTQ children or other family members. It is therefore critical to understand a few points:
- Executive Orders targeting "woke gender ideology" do not change the law regarding employment protections for LGBQT employees. While there is some threat for employers who receive federal funds, that threat is ambiguous, and the conduct that could trigger a loss of funds is undefined.
- In contrast to the fuzzy dictates of the Executive Orders, Title VII of the Civil Rights Act, as well as many state and local laws, provide explicit protections for LGBTQ employees. This includes prohibiting discrimination or harassment on the basis of sexual orientation, gender identity, or gender expression.
- Protections for LGBTQ employees have been construed as extending to prohibit intentionally misgendering employees or using their incorrect name (i.e., "dead-naming"), denying employees access to restrooms or other single-sex facilities in accordance with the employees' gender identity, or tolerating mistreatment of employees on the basis of sexual orientation or gender identity.
- Employers may have additional obligations toward LGBTQ employees beyond preventing workplace discrimination. Many employers have handbook policies or other provisions affirmatively requiring LGBTQ inclusion. Additionally, state and local law may be more protective than federal law; for example, some states require employers to train their workforce on gender identity principles or to permit employees to access single-sex facilities that correspond to the employee's gender identity.
- While the Trump 'Administration's actions have not terminated existing protections for LGBTQ employees, the actions themselves and the dehumanizing language they employ are extremely harmful to employees in this protected group. These actions also coincide with an ongoing increase in incidents of harassment and violence toward LGBTQ individuals. Employers should therefore remain vigilant to ensure they do not tolerate workplace harassment, including derogatory statements or insults, toward these employees.
- In addition to fearing erasure by the federal government and potential workplace harassment, LGBTQ employees across the United States and in all sectors are currently questioning the extent to which their employers will continue to support and protect them. This extends to the employer's position on issues such as restroom access, use of proper name and pronouns, dress codes, name badges, email signatures, and medical benefits. Transgender and nonbinary employees may also have questions regarding work-related travel, as their identification documents may be challenged, or they may have concerns about traveling to states with laws that are more hostile toward them. Employers should take steps to address these questions and to reassure this population that the recent actions by the federal government do not override their protections under existing law or otherwise undermine the employer's commitment to support them.
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