Seyfarth Synopsis: The Trump Administration’s new Executive Order on “gender ideology extremism” signals a dramatic shift in federal policy that will impact workplace policies, benefits, and compliance obligations relating to transgender individuals. While this Executive Order focuses first on federal agencies and programs, its provisions mark a shift in the federal government’s position with respect to transgender individuals that will impact private sector workplace policies and compliance obligations.
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On Day 1 of his new administration, President Trump signed a new Executive Order titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which will affect federal employment, contractor obligations, and nondiscrimination enforcement priorities. Most significantly for employers, President Trump’s Order directs federal agencies to interpret “sex” solely as an immutable biological classification determined at conception, and requires all federal agencies to enforce sex-based rights, protections, and accommodations using this binary definition of "sex". The Order expressly rejects “gender identity” as synonymous or inclusive of “sex” in all Executive Branch interpretations of federal law and administrative policy.
President Trump’s Executive Order explicitly directs federal agencies to ensure that “intimate spaces” are segregated by biological sex rather than gender identity, signaling ongoing conflicts regarding what restrooms transgender and nonbinary individuals may use at work and elsewhere. While the immediate scope of these provisions is limited to federal facilities, Section 5 of the Order also 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.” It is likely that the “right to single-sex spaces” in workplaces will be interpreted by the Attorney General as a right to use a restroom that is segregated based on sex assigned at birth, rather than gender identity. We are closely monitoring the extent to which the Attorney General’s guidance might apply to private-sector workplaces, and what level of deference it will receive in the courts.
Section 3(f) of the order also explicitly rejects the Biden administration’s interpretation of the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII’s prohibition of discrimination “on the basis of sex” included discrimination on the basis of transgender status. President Trump has ordered the Attorney General to issue guidance “to correct the misapplication” of Bostock by the Biden Administration, specifically invoking the Biden administration’s extension of Bostock beyond Title VII into other contexts like Title IX (education) and sex-segregated facilities.
President Trump’s Executive Order also explicitly addresses multiple prior administration actions protecting transgender individuals, including the EEOC’s guidance on workplace harassment, and other policies under Title IX and elsewhere. The Executive Order further mandates the elimination of non-binary gender markers across federal systems and documents, signaling a broad rollback of federal recognition for gender identity beyond a binary sex assigned at birth. The Order also specifically requires agencies to remove all policies, regulations, forms, or other communications that “promote or otherwise inculcate gender ideology.”
The Executive Order further directs that any forms requiring sex information must list only “male” or “female” options, and directs federal agencies to require that all government-issued identification documents, including passports and federal employment records, reflect only biological “sex” as defined in the Order. This shift in policy will likely create ongoing challenges for transgender and nonbinary individuals who have updated their gender markers on their current passports and other identity documents. Private employers may face practical challenges as they are confronted with discrepancies between federal identity documents and systems, and ongoing efforts by the federal government, such as through the federal REAL ID program, that will make it more-difficult for transgender and nonbinary individuals to obtain state-issued identity documents reflecting their gender identity.
The Executive Order’s provisions regarding federal grant funding may also have far-reaching implications for many employers that receive federal funds. Section 3(g) explicitly directs agencies to “assess grant conditions and grantee preferences” to ensure federal funds do not “promote gender ideology.” This broad directive could affect a wide range of organizations, from universities receiving research grants to healthcare providers participating in federal programs to nonprofit organizations receiving federal funding for social services.
President Trump’s Executive Order also directs the Attorney General, Secretary of Labor, and EEOC leadership to “prioritize investigations and litigation to enforce the rights and freedoms identified.” We expect the Department of Justice’s Civil Rights Division, under nominee Harmeet Dhillon, to focus on challenging the participation of transgender individuals in sports and education programs through enforcement actions and litigation.
An early example of the conflicting practical challenges employers will face can be seen in conflicting positions taken by the sitting EEOC Commissioners. Also on Day One of his new administration, President Trump named the EEOC’s sole Republican Commissioner, Andrea Lucas, as Acting Chair of the EEOC. On January 21, 2025, Acting Chair Lucas issued a press release in which she included in her priorities, “defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work.”[1]
A few hours later, the EEOC’s three Democrats, Charlotte Burrows, Jocelyn Samuels, and Kalpana Kotagal, issued a joint statement asserting, “LGBTQI+ workers – including transgender workers – are protected by federal law and entitled to the full measure of America’s promise of equal opportunity in the workplace…To exclude any group of workers from these protections contravenes both the law and this mandate.” This stark partisan contrast between EEOC leadership demonstrates some of the uncertainty about how employers are to navigate workplace issues involving transgender employees in the months ahead.
President Trump’s Executive Order establishes an aggressive implementation timeline, requiring agencies to report on their progress within 120 days. We anticipate litigation challenging various aspects of this Executive Order, which may create additional uncertainty for employers as courts work to reconcile these new federal directives with existing precedent and state laws.
[1] We expect that assuming all of the current EEOC Commissioners serve out their full remaining terms, the EEOC will have difficulty formally adjusting their investigation and litigation priorities in this area. However, as Acting Chair, Lucas has numerous tools at her disposal to influence the EEOC’s messaging and action in this area.
