Included in the package of executive orders issued on January 20, 2025, was an executive order entitled, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The executive order’s primary focus is defining “sex” as an “immutable biological classification as either male or female” and directing federal agencies to implement this definition in various facets of the executive branch. The executive order also directs agency heads to rescind any prior guidance or messages that conflict with the executive order’s definition of “sex”. Although this executive order touches on several areas, it notably emphasizes Title VII of the Civil Right Act of 1964 and the U.S. Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020):
The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.
The executive order also directs agencies with enforcement responsibilities under the Civil Rights Act (like the EEOC and DOJ) to “prioritize investigations and litigation to enforce the rights and freedoms identified [in the executive order]” and generally directs the rescission of any guidance documents that are inconsistent with the executive order or the Attorney General’s guidance issued pursuant to the order, and specifically identifies the EEOC’s “Enforcement Guidance on Harassment in the Workplace” issued on April 29, 2024.
First, when it comes to rescinding any EEOC documents, there are a handful of documents that the EEOC Chair (or Acting Chair) cannot unilaterally change. These include the EEOC’s Enforcement Guidance, the EEOC’s Strategic Plan (2022-2026), and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028. Adjustments to these documents require a majority vote by the EEOC Commissioners. The current Acting Chair of the EEOC noted in a press release that, because the EEOC currently lacks quorum, the EEOC is unable to modify those issuances.
Second, the executive order also cannot alter the statutory protections afforded under Title VII, including statutory interpretations by the U.S. Supreme Court. Unless Congress amends the definition of “sex” as used in Title VII or the Supreme Court otherwise overrules or narrows Bostock in the future, Title VII continues to protect individuals from employment discrimination based on their gender identity and/or gender stereotypes pursuant to Bostock.
One area that will likely be impacted by the executive order is enforcement of Title VII’s protections against discrimination based on gender identity by the U.S. Department of Justice and the EEOC for non-federal employees. Where conciliation efforts are unsuccessful, 42 U.S.C. § 2000e-5 affords the EEOC the discretion to file a civil action against non-governmental entities and, where the respondent is a governmental entity, requires the EEOC to refer the case to the U.S. Attorney General to decide whether to pursue a civil action. In light of this executive order, it is possible that neither the EEOC nor DOJ will prioritize enforcing Title VII protections for gender identity discrimination through civil actions. Notably, this procedure does not apply to federal employees, who instead fall under 42 U.S.C. § 2000e-16.
Additionally, it is unclear how the executive order may impact the processing of EEO complaints for federal sector employees (including federal government contract employees with “joint employer” claims against their employing federal agencies). The EEOC’s federal sector regulations and Management Directive 110 do not include their own regulatory definitions of sex discrimination, instead deferring to precedent from the Supreme Court and the EEOC’s Office of Federal Operations (OFO), and OFO precedent cannot overrule Supreme Court precedent. Notably, in pre-Bostock OFO precedent, the EEOC had recognized coverage for gender identity cases under Title VII under a line of pre-Bostock Supreme Court precedents for the “sex stereotyping” theory. See Macy v. Dept. of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). Indeed, EEOC cases have affirmed the rights of federal employees to access gender-neutral facilities and/or facilities that align with their gender identities, which is in conflict with the Executive Order. See Lusardi v. Dep’t of Army, EEOC App. No. 012013395 (Apr. 1, 2015).
What happens if federal agencies follow the executive order? Despite the Supreme Court and Commission precedent, they may begin dismissing EEO complaints alleging discrimination based on gender identity or minimizing efforts to perform investigations into allegations of discrimination based on gender identity, and EEO counselors may begin advising federal employees initiating EEO contact that such allegations of discrimination are not protected under Title VII. If that were to occur, affected employees may have to look to the courts for their redress. In the event of an adverse finding in the EEOC administrative process, federal employees are still entitled to a de novo litigation of their claims in federal district court under relevant statutory provisions; those courts are mandated to follow Supreme Court precedent and traditionally give limited deference to EEOC policy issuances.
If you are a federal government employee or federal contract employee who believes you are experiencing discrimination in the workplace based on your gender identity, consider contacting Gilbert Employment Law to request an initial consultation.