President Trump’s Executive Order on Recognizing two Sexes: Implications to Private Employers
The Order declares that the United States will only recognize two sexes, male and female, and states that these ages are binary, biological, and “not changeable.” The Order states that the United States only recognizes two sexes: male and female. It also states that these sexes will be binary, biological and “not changeable.” In addition, the Order mandates “privacy in intimate spaces” to ensure that single-sex spaces, such as federal prisons and rape shelters, are designated by sex and not by gender identity.
Limiting the Scope of Bostock
Notably, the Order explicitly states the Trump Administration’s intent to limit the scope of the U.S. Supreme Court’s 2020 ruling in Bostock v. Clay County. In Bostock, it was held that Title VII of Civil Rights Act of 1965 prohibits discrimination based on “sex”. This includes discrimination based on sexual orientation and gender identification. According to the Order, the Biden Administration interpreted Bostock to “require
gender identity-based access to single-sex spaces.” The Order directs the Attorney General to immediately issue guidance to federal agencies to “correct
misapplication” of Bostock to “sex-based distinctions in agency activities.” The Senate Judiciary Committee is scheduled to vote on President Trump’s Attorney General nominee, Pam Bondi, on January 29.
What The Executive Order Means for Private Employers[]Importantly, the Order directs the Attorney General to issue guidance to “ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.” Pursuant to that guidance, the Order instructs the Attorney General, the Secretary of Labor, and the General Counsel and Chair of the Equal Employment Opportunity Commission (“EEOC”), as well as any other agency heads with enforcement power, to prioritize investigations and litigation to enforce the binary sex mandate. The EEOC will likely slow down its litigation pace and focus on enforcement through investigations of employers suspected of violating the discrimination laws. However, employers may face more litigation in the months and years to come if they do not comply with the Executive Order. [this]Finally, the Order requires that all federal agencies rescind any guidelines that are inconsistent with the Executive Order or the Attorney General’s upcoming guidance. The Order also calls for revocation of the EEOC’s April 2024 “Enforcement Guidelines on Harassment at Workplace” guidance.
As Proskauer has previously covered, this guidance provided broad protection to LGBTQ+ workers from harassing conduct based The guidance also stated that Title VII covers sex-based sexual harassment, including harassment based on pregnancy or childbirth (including the decision whether or not to have an abortion). With this guidance no longer in effect, employers should review any modifications to policies or practices implemented in response to the guidance against the other requirements of the Executive Order.
Takeaways
This Order was just one of dozens of executive actions taken by President Trump within hours of his inauguration. We expect that there will be many more updates in the days and weeks to come. We will continue to monitor these updates and report them.
