President Trump's recent directive requiring the federal government to recognize only two sexes is expected to face legal challenges, as it conflicts with recent interpretations of a U.S. Supreme Court ruling that solidified anti-discrimination protections for LGBTQ+ workers. This development could have significant implications for employers, potentially influencing workplace policies and workplace discrimination claims.

The executive order, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”, was published on January 20, 2025. The executive order is part of the new administration’s effort to roll back federal diversity, equity, and inclusion initiatives.  In addition to stating that the definition of “sex” excludes “gender identity” and defines sex as “either male or female,” the executive order also:

• Mandates federal agencies to use these definitions when interpreting or applying statutes, regulations, or guidance;
• Orders agency heads to rescind guidance documents, including inconsistent parts of the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace; and

• Declares the Biden Administration’s interpretation of Bostock v. Clayton County (2020) regarding gender identity-based access to single-sex spaces (including bathrooms) as incorrect.

The executive order appears to conflict with recent guidance from the Equal Employment Opportunity Commission (the “EEOC”), which clarified and expanded protections for LGBTQ+ workers following the Supreme Court’s landmark decision in Bostock v. Clayton County. In Bostock, the Supreme Court held that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from discrimination based on sexuality or gender identity. EEOC guidance stemming from Bostock has clarified that actions such as misgendering employees or preventing them from using restrooms that align with their gender identity may constitute a hostile work environment claim.

The executive order is already facing legal challenges, with a lawsuit filed in the U.S. District Court of Maryland seeking an injunction to block its impact on gender-affirming medical care. In the meantime, employers should prepare for updated guidance from the EEOC and other federal agencies regarding workplace protections for LGBTQ+ employees. It is important to note that, despite potential rollbacks at the federal level, many state and local governments maintain robust anti-discrimination laws protecting LGBTQ+ individuals. These laws remain in full effect and must be adhered to by employers.

While awaiting further developments, employers should monitor legal updates closely and consult legal counsel as needed to manage potential risks effectively. For more information and any assistance, we encourage you to contact a member of our Employment, Labor and Benefits practice group.

_{This content is made available for educational purposes only and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this content, you understand there is no attorney-client relationship between you and the publisher. The content should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.}