Recognition of gender identity and gender expression, and opportunities for transgender individuals, have become a particular focus of attack under the new administration’s general targeting of DEI programs.  Invoking the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964, one Trump Executive Order issued on January 20, 2025, complains of “ideologues who deny the biological reality of sex” and challenges the “replacement” of the biological reality of sex as binary with the concept of gender identity falling within a spectrum.

The U.S. Supreme Court addressed some of the same issues less than five years ago, in Bostock v. Clayton County (June 2020), where it held the prohibition against sex discrimination under Title VII applied to protect homosexual and transgender individuals.  Consistent with the Supreme Court’s interpretation, states and localities also have their own laws that expressly grant protections based on sexual orientation, gender identity and gender expression.

This is the fifth in our series of articles on the Trump Executive Orders on affirmative action (AA) and diversity, equity and inclusion (DEI) issued on January 20 and 21, 2025, that collectively outline how we got here, what has been eliminated, what new mandates have been issued, what has survived intact, and what employers can do going forward if diversity remains an important value for them.  This article highlights the executive orders related to gender identity, how they can coexist with the Bostock decision, and the serious questions currently unanswered for employers as to how to reconcile the new federal government directives with state and local law requirements.

Creating a Binary Male/Female World

The Trump Executive order declares it to be “the policy of the United States to recognize two sexes, male and female” as an “incontrovertible reality.”  In furtherance of that pronouncement, the executive order provides that sex is to be determined “at conception” and “is not a synonym for and does not include the concept of ’gender identity,’” which it describes as an “internal and subjective sense of self” that cannot serve as a meaningful basis for identification or be recognized as a replacement for sex.

The executive order then focuses on varied ways in which male/female distinctions should be established consistent with those pronouncements:

• Laws governing sex-based distinctions should be enforced to protect men and women as biologically distinct;
• All federal policies and documents are to use the term “sex” and not “gender;”
• Federal government-issued forms of identification must be consistent with the executive order’s biological definitions of sex;
• No federal funds or internal or external federal messaging, policies, regulations, etc. can request or promote gender identity or “gender ideology,” which means the idea that gender is a spectrum or that it is possible for a person’s gender identity to differ from the biological sex assigned at birth;
• Access to single-sex spaces must align with binary sex distinctions, without consideration of gender identity – including bathrooms and locker rooms, rape crisis centers, as well as prisons and detention centers; and
• All federal legal enforcement bodies, including the Attorney General, Secretary of Labor, and General Counsel and Chair of the Equal Employment Opportunity Commission are to prioritize investigations and litigation to enforce the right to express the binary nature of sex and the right to single-sex spaces in workplaces and federally-funded entities covered by Title VII.

Executive Order vs. Supreme Court

In June 2020, the U.S. Supreme Court considered a trio of cases, in each of which an employer had allegedly fired an employee for being homosexual or transgender.  A county government employee was terminated for “conduct unbecoming” of a government employee shortly after he began participating in a gay recreational softball league.  A private employer fired an employee days after he mentioned being gay, and a different private employer fired an employee who presented as a man when hired and then informed the employer that the employee planned to “live and work full-time as a woman.”

Historically, these types of claims, which were consolidated for consideration in the Bostock decision, generally had not been successfully asserted as violations of Title VII of the Civil Rights Act of 1964, or at least not without demonstrating that they were predicated on actions that amounted to sex stereotyping.  A majority of the Supreme Court came to a different conclusion in Bostock, and held that based on the plain language of the statute, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

At the time of the Court’s decision, the parties had argued, similar to the pronouncement in the Trump Executive Order, that “sex” in 1964 referred to the biological distinctions between men and women.  The Supreme Court accepted that definition but declared it “just a starting point.”  An employer that fails to hire, discharges, or otherwise discriminates against an individual violates Title VII, the Court explained, if the employer would not have taken the challenged action “but for” the individual’s sex.

“But For” Analysis and Sex as a Factor

The Court reasoned that an employer fails the “but for” test when it bases adverse employment decisions on the sex of the person to whom an employee is sexually attracted, or on the sex with which that employee identifies.  The Court explained: “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Court further emphasized that each case looks at how an employer treats a particular individual, and not how groups of women are treated as contrasted with groups of men.

Where the Court Stopped

In reaching the majority decision, the Court responded to arguments presented by the employers and articulated in dissenting opinions with regard to the scope and extent of its holding.  The Court dismissed as premature a concern that sex-segregated bathrooms, locker rooms, and dress codes were desirable, but could potentially be struck down based on the Court’s decision, stating that none of those issues were being presented for review at the time.  “Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these,” the Court explained.  Since Bostock, parties have deliberated the scope and limits of Title VII protections for individuals based on sexual orientation, gender identity, and gender expression.

Will the Executive Order “Stick?”

Some elements of the Trump Executive Order with regard to gender identity are more controversial than others.  On the milder side, substituting the term “sex” for “gender” in federal policies and documents likely falls in the discretion of the executive branch.  More questionable will be how the directive to enforce laws and revise policies and regulations governing sex-based distinctions gets applied.

It is one thing to deny individuals access to single-sex spaces like bathrooms or locker rooms based on their sex assigned at birth.  The legality of that is the question left open by the Bostock decision.  Lawsuits are already working their way through the courts, pressing that question.  Employers wishing to avoid the political debate may explore practical solutions like offering unisex bathrooms (with individual locking toilet stalls) and single-person shower and changing facilities.

It is quite another thing, and far more legally questionable, to investigate and sue employers and other organizations for “sex discrimination” in violation of Title VII if they do not “ensure the freedom to express the binary nature of sex and the right to single-sex spaces.”  It means not only can an employer face being sued for discrimination for not granting a transgender individual access to a particular bathroom, but the employer also can face being sued for discrimination if it does grant a transgender individual access to that bathroom.

The executive order also begs the question how much leeway employers must allow employees in their freedom of expression with regard to the binary nature of sex.  Can an employee siderail workplace training program discussions touching on gender diversity or demand to be excused from a mandatory training?  Is that protecting against sex discrimination, or engaging in a new form of discrimination based on sex?

State and Local Laws May Impose Conflicting Mandates on Employers

State and local laws are required to comply with federal law, and can grant employees greater rights.  But what happens when, as here, an executive order seems to conflict in meaningful respects with the more historic application and Supreme Court interpretation of the federal law?

Consider, for example, the provision in the Trump Executive Order that prohibits federal contractors and grant recipients from promoting the idea that gender is a spectrum.  New York State requires that employers address gender identity and gender expression in their annual harassment prevention training programs. The state’s model harassment training includes a slide on gender identity that states, “understanding gender diversity is essential to recognizing sexual harassment & gender discrimination.”  The executive order and the state requirement are in direct conflict.

Even more challenging for employers, New York adopted a constitutional amendment this past November 2024 that incorporates protections based on gender identity and gender expression into the state constitution.  Many other states and localities, including neighboring New Jersey and Connecticut, similarly assure employees legal protection based on gender identity and gender expression.

In response to a follow-up Trump Executive Order from January 28, 2025, that places numerous restrictions on medical procedures to support gender transition for those under the age of 19, The New York Times reported that the New York State Attorney General has already issued a warning to New York hospitals that they may be in violation of state law if they deny such medical care for transgender youth.  This leaves organizations in a conundrum.

Disregarding any portion of the Trump Executive Orders related to gender identity likely will jeopardize federal contracts or funding.  Depending on how the orders are enforced, noncompliance could mean that even private employers who take no federal funding face being sued for violating Title VII.  As a competing consideration, compliance with the executive orders also could result in an employer being sued for conduct that violates state and local law protections.

For now, the path forward is two-fold: keep watching for further developments, and get legal advice.

By Tracey I. Levy