Navigating the Legal Crossroads: Trump’s Executive Order and Its Challenge to EEOC Protections

Creating a legal U-turn, on January 20, 2025, President Trump issued Executive Order 14168 “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the “Order”), signaling a significant shift in the federal government’s approach to workplace harassment protections from the path laid out in the Equal Employment Opportunity Commission’s  (“EEOC”) April 2024 workplace harassment guidance (the “Guidance”).  The Order aims to end federal enforcement of sex-based laws based upon gender identity and directs federal agencies to enforce sex-based antidiscrimination laws without regard to gender identity.  Indeed, the Order expressly asserts that recognizing gender identity “improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them.”  The Order takes direct aim at the EEOC’s Guidance, calling for its recission.

A Legal U-Turn: The Order Seeks to Rescind the EEOC’s Enforcement Guidance on Harassment in the Workplace

The April 2024 Enforcement Guidance on Harassment in the Workplace marked the EEOC’s first update to workplace harassment guidance in nearly thirty (30) years, responding to the expanded Title VII protections for LGBTQ+ employees as recognized in the landmark Supreme Court decision in Bostock v.  Clayton Cnty., 590 U.S.  644 (2020).  In the seminal decision, the Supreme Court held that Title VII’s prohibition on sex-based employment discrimination included discrimination on the basis of sexual orientation and gender identity.  The EEOC took the enforcement position in its Guidance that workplace harassment could include denying an employee access to a bathroom consistent with their gender identity as well as the repeated and intentional use of a pronoun inconsistent with an employee’s known, preferred pronouns. 

Reversing course, Executive Order 14168 directs federal agencies to ensure that “intimate spaces” in the workplace designed for “women, girls, or females (or for men, boys, and males) be designated by sex and not gender identity.  The Order does not provide a comprehensive definition for “intimate spaces” but provides, as an example, women’s workplace showers.  In support of its directives, the Order specifically labels “the practice of “permit[ting] men to self-identify as women and gain access to intimate single-sex spaces… designed for women” as “wrong” and an “effort[] to eradicate the biological reality of sex.”  Further, the Order directs the EEOC agency head to rescind the Guidance and various other agency heads to rescind thirteen (13) other agency guidance documents deemed to improperly recognize gender identity as separate from biological sex.  This directive illustrates the crossroads faced by agencies and employers as they navigate the evolving legal landscape and the competing interpretations of what constitutes federally prohibited sex-based discrimination. 

Yellow Flashing Traffic Lights: Conflicting Signals Between the Order and Supreme Court Precedent

In further conflict with legal precedent set by the Bostock decision and affirmed by numerous courts, the Order also directs, in relevant part:

1. All federal agencies and employees to recognize two biological sexes, male and female, when interpreting, implementing, and enforcing statutes, regulations, or guidance and in all other official agency business, documents, and communications;
2. All federal agencies to remove any recognition of gender identity as separate from biological sex from all statements, policies, regulations, forms, communications, or other internal and external messages;
3. All federal agency heads to promptly rescind all guidance documents that are inconsistent, in part or in full, with the directives of the Order;
4. The Attorney General to immediately issue guidance to agencies directing that the Supreme Court’s Bostock decision be reinterpreted to not provide gender-identity-based workplace protections, such as access to bathrooms consistent with employees’ gender identity;
5. Federal agencies to ensure federal grant funds “do not promote gender ideology;”
6. Federal agencies to take actions to ensure that “intimate spaces” be designated by biological sex and not gender identity;
7. The Attorney General to issue guidance that directs the Secretary of Labor, the General Counsel and Chair of the EEOC, and all other agency heads with enforcement responsibilities under the Civil Rights Act to “prioritize investigations and litigation to enforce” the recognition of biological sex and rejection of gender identity;
8. The Assistant to the President for Legislative Affairs to propose legislative text that codifies the definitions of “sex,” “women,” “men,” “female,” “male,” “gender ideology,” and “gender identity” pursuant to the definitions in the Order by February 19, 2025;
9. The Secretary of Health and Human Services to provide clear guidance expanding on the above-described definitions by February 19, 2025 to the U.S.  Government, external partners, and the public;
10. All federal agency heads to submit an update to the President outlining compliance efforts in alignment with the Order by May 30, 2025.

Ongoing and Anticipated Legal Challenges to the Guidance

The Order is not the first legal challenge to the Guidance; currently, numerous lawsuits brought by Attorneys General for nineteen (19) Republican majority states seeking to vacate the Guidance are still underway and have been impacted by the Order.  As these legal battles unfold at this critical crossroads, the implications of the Order will undoubtedly shape the future of workplace protections across the nation.  By way of example, on January 23, 2025, a federal court in Tennessee canceled an oral argument originally scheduled for January 27, 2025, regarding a preliminary injunction sought by a coalition of eighteen (18) Republican Attorneys General against the EEOC, challenging the legality of the Guidance.  In its indefinite cancellation notice, the court noted that the cancellation was required “[g]iven the obvious significance of the Executive Order to this litigation.” (State of Tennessee et al v.  Equal Employment Opportunity Commission et al, Docket No.  3:24-cv-00224 (E.D.  Tenn.  May 13, 2024), Court Docket).  Additionally, on January 27, 2025, a Texas federal court in a similar litigation initiated by the state of Texas ordered the parties to submit a joint brief “detailing how this executive order bears on the disposition of this litigation” by February 10, 2025. (State of Texas et al v.  Equal Employment Opportunity Commission et al, Docket No.  2:24-cv-00173 (N.D.  Tex.  Aug 15, 2024), Court Docket). Therein, plaintiffs took the position that the Order did not moot or otherwise affect the litigation because the Guidance was “unlikely to be rescinded any time soon” and “[e]ven a repeal of the [Guide] would not prevent [the] EEOC from attempting to enforce Title VII [with regards to gender identity] in the future.” Meanwhile, the EEOC agreed that the Order did not affect the litigation at this time, but argued that recission of the Guidance would render plaintiff’s claims moot. The ultimate effect of the Order on pending federal litigation over the Guidance remains to be determined.

While newly appointed Acting EEOC Chair Andrea R. Lucas expressed a desire to revoke the Guidance, the EEOC may only rescind the Guidance by majority vote.  In addition, there appears to be an ideological shift on the horizon for the formerly Democrat-majority, five-member EEOC board.  On January 28, 2025, President Trump fired two of three Democratic EEOC board members and appointed Andrew Rogers as Acting Head Lawyer at the EEOC, creating uncertainty as to whether the EEOC will uphold its Guidance.  In the interim, acting EEOC Chair Andrea R.  Lucas has taken initial steps to comply with the Order by removing a feature in EEOC employees’ Microsoft 365 profiles that allowed the optional display of pronouns in emails, calling for the review of the EEOC’s “Know Your Rights” poster, and removing materials on the EEOC’s websites, forms, and trainings that recognize gender identity.  Further, on or about February 14, 2025, the EEOC moved to dismiss at least six (6) lawsuits alleging gender identity discrimination on the basis of employers’ tolerance of misgendering and other harassing and invasive comments from co-workers, stating in each motion to dismiss that “[t]he EEOC’s continued litigation of the claim in [the] action may be inconsistent with the Order.”  The ultimate effect of the Order on pending litigation over gender identity workplace protections afforded by Guidance also remains to be determined.

Next Steps

Employers should be prepared to reevaluate their workplace harassment and discrimination policies and training to ensure compliance with the new changes to the employment discrimination legal landscape.  As employers and agencies navigate this legal crossroads and conflicting signals, it is essential for employers to stay informed and proactive in adapting to the evolving legal requirements.

Buchanan’s Labor and Employment team of attorneys continue to monitor these legal developments closely and stands ready to assist employers with ensuring that their policies and practices comply with the most current standards on prohibited employment discrimination.