Paul O. Lopez, Esq., is chief operating office at Tripp Scott. Brittany L Hynes, Esq., is an associate at the firm.
One of the many executive orders President Donald Trump issued in recent weeks could affect how the U.S. Equal Employment Opportunity Commission will view gender issues in the coming years.
Specifically, Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” calls for federal agencies to uphold laws that protect men and women as biologically distinct sexes.
EEOC falls in line
Following the order, EEOC shifted away from “gender ideology.” The agency outlined a change in sexual harassment and sex-based discrimination compliance and enforcement policy under Acting Chair Andrea Lucas, and confirmed it is removing materials on such concepts from its websites, documents, training and more.
Specifically, Lucas has:
- Announced that one of her priorities — for compliance, investigations and litigation — is to defend the “biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”
- Removed the agency’s “pronoun app” for network profiles, which had enabled EEOC employees to identify and display their pronouns in both internal and external communications.
- Removed the “X” gender marker for filing a discrimination charge and directed that the prefix “Mx.” be removed as an option for discrimination charges and related forms.
- Initiated a review of the EEOC’s “Know Your Rights” poster, which was last revised in June 2023 and lists “sexual orientation” and “gender identity” as bases for unlawful discrimination.
- Removed information “promoting gender ideology” from the EEOC’s internal and external websites and media platforms.
- Added banners to public documents explaining that they “cannot be immediately removed or revised” and have “not yet been brought into compliance” because EEOC lacks a quorum.
Bostock remains good law
The U.S. Supreme Court in 2020 held in Bostock v. Clayton County, Georgia, that the ban on sex discrimination in the workplace pursuant to Title VII of the Civil Rights Act of 1964 includes protections for sexual orientation and gender identity.
In the years that followed, EEOC issued several guidance documents adopting that interpretation. Now, Lucas has said the agency’s “flawed” guidance on harassment due to gender identity should be rescinded.
Defending her stance, Lucas argued that “[i]t is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms or other similar facilities which implicate these significant privacy and safety interests. And the Supreme Court’s decision in Bostock v. Clayton County does not demand otherwise: the Court explicitly stated that it did ‘not purport to address bathrooms, locker rooms, or anything else of the kind.’”
The EEOC’s policy change clearly prioritizes biological definitions of sex in compliance and enforcement actions, as well as the removal of nonbinary gender markers and resources related to gender identity. The shift dramatically contrasts with the previous administration’s stance, specifically following the Supreme Court’s decision in Bostock. While Bostock did not specifically address the issue of “single-sex spaces,” the executive order’s intent to restrict facilities to one of the two recognized sexes is clear. Moving forward, we can expect that these issues will be subject to significant litigation.
However, it is important to acknowledge that discrimination against transgender and nonbinary individuals remains illegal under federal law, as well as under many state and local laws, and employers need to continue to take measures to ensure that these rights are protected. Unless the Bostock decision is reversed, employers can anticipate that charges of discrimination based on sexual orientation and gender identity will continue to be filed.
Nevertheless, it is unlikely that the EEOC itself will continue to pursue such claims over the next four years — especially given its recent move to abandon its pending gender identity bias lawsuits. Furthermore, it is uncertain whether independent agencies will follow their own priorities or mimic those of the EEOC. That said, it is clear that Trump’s recent executive order relating to gender ideology will impact how the EEOC moves forward on these issues during the president’s second term.
