President Trump’s Executive Order Enforcing Binary Gender Recognition Marks Significant Policy Shift and Employment Impact

By Drake Mirsch, Selene Houlis, and Jason Yu

On January 20, 2025, President Donald Trump issued a slew of executive orders, including Executive Order (EO) 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This order aims to enforce a binary understanding of sex and marks a significant policy shift in how the federal government recognizes gender.

Key Provisions of the Order

The executive order mandates that all federal agencies must replace the term “gender” with “sex” in all official materials and policies. It explicitly requires recognition of only two “immutable” biological sexes, determined at conception. This directive extends to ceasing all federal funding for gender-affirming care, disallowing gender self-identification on federal identification documents like passports, and halting the promotion of what the order terms “gender ideology.” This ideology, according to the order, is seen as an attempt to replace the biological reality of sex with a fluid concept of gender identity.

The order also directs agencies to rescind any previous policies or guidance that conflict with this new stance, notably impacting areas like federal workplace policies, education, and healthcare.

EEOC Acting Chair Rolls Back Gender Identity Guidance

One week after EO 14168 was issued, on January 28, 2025, Acting Chair of the U.S. Equal Employment Opportunity Commission (EEOC), Andrea Lucas, “announced the agency is returning to its mission of protecting women from sexual harassment and sex-based discrimination in the workplace.” Citing EO 14168, Acting Chair Lucas took a number of actions, including:

Impact on Title VII Protections

Despite these sweeping changes, neither EO 14168 nor the Acting Chair’s actions overturn or preempt the Supreme Court’s 2020 landmark decision in Bostock v. Clayton County. In an opinion authored by Justice Neil Gorsuch, a Trump appointee, the Supreme Court held that discrimination based on sexual orientation or gender identity constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. This ruling protects employees from being fired or being subjected to adverse action for their sexual orientation or transgender status. The Title VII protections recognized in Bostock are likely to remain, even under the current Court, given that Gorsuch authored the opinion.

However, the executive order directs the attorney general to “immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock” related to “gender identity-based access to single-sex space.” The Bostock decision explicitly mentioned that “sex-segregated bathrooms, locker rooms, and dress codes” were not before the Court and had not had “the benefit of adversarial testing about the meaning of their terms.” Latching on to this passage in Bostock, EO 14168 seeks to limit access to “single-sex spaces,” like bathrooms and locker rooms, to one of two recognized sexes. Access to these types of facilities will likely be the subject of litigation in the near future. However, under federal, state, and many local laws, discrimination against transgender and non-binary/gender non-conforming individuals is still prohibited.

Implications for Employers

While discrimination based on sexual orientation or gender identity constitutes sex discrimination under existing law, it is expected the EEOC will issue further guidance on gender-identity-based access to single-sex spaces. However, the EEOC is currently without a “quorum” because President Trump fired the EEOC’s two democratic commissioners. Without a quorum, the EEOC cannot initiate formal rulemaking or revoke formal guidance. In the meantime, both public and private employers should review their existing policies to ensure compliance with Bostock.

Snell & Wilmer will continue to track changes to employment policy under the new administration and provide updates.