On January 20, 2025, President Trump issued an Executive Order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”.   The stated purpose of the Order is to defend women’s rights and protect freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.  The Order states that the U.S. recognizes two sexes, male and female, which are not changeable, and that the Executive Branch will enforce all sex-protective laws under this rationale.  The Executive Order provides specific definitions for the terms of  women, girls, men, boys, male and female.  

The Executive Order instructs all federal agencies to effectuate this policy by taking appropriate action to ensure that intimate spaces designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity. The Executive Order also speaks to some specific situations involving transgender individuals, including ensuring that transgender women are not housed in women’s prisons (and ensuring that no federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex), ensuring that passports accurately reflect the holder’s sex, and prohibiting the use of federal funds to promote gender ideology. 

In the larger employment law context, the most relevant portion of the Executive Order is that which directs every federal agency (including the Equal Employment Opportunity Commission) and federal employees to enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.  All federal policies are to use the term “sex” and not “gender” in all applicable Federal policies and documents.  Agencies are directed to remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and must cease issuing such statements, policies, regulations, forms, communications or other messages.  

Based on the Executive Order, and other actions from the Trump administration that seek to limit transgender rights, it is clear that federal agencies will be reorientating their mission with a new focus on defining the sexes in a strictly biological manner.  On January 28, 2025, the Acting Chair of the EEOC announced the agency “is returning to its mission of protecting women from sexual harassment and sex-based discrimination in the workplace,” including prioritizing defending the “biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”

Despite these actions, employers are still subject to current law. In Bostock v. Clayton County, the Supreme Court held that discrimination based on an individual’s sexual orientation or gender identity is unlawful under Title VII of the Civil Rights Act of 1964.  Furthermore, NY employers must continue to comply with state law, which provides protections to employees on the basis of their sexual orientation and gender identity. 

While the recent actions of the Trump administration signal a shift in federal employment law away from protection of gender identity and expression, in order to comply with the current state of the law, private employers should continue to enforce policies that prohibit discrimination on the basis of an employee’s gender identity.  Ali Law Group will continue to monitor this issue, and will report if and when policies that protect gender identity and expression need to be amended. 

Should you have any questions or need assistance regarding the amendment to the law, please contact Ali Law Group.

HRtelligence was created by the team at Ali Law Group, LLC.  Should you have any questions or need assistance, please contact Ali Law Group.

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