Alert
Are Transgender and Non-Binary Employees Being Erased from Workplace Policies?
Read Time: 3 minsDue to growing awareness and diversity, equity, and inclusion (DEI) policies, the public has slowly begun to accept transgender individuals and those who do not identify as a man or a woman (non-binary). On his first day in office, President Trump issued an Executive Order (EO) that “[i]t is the policy of the United States to recognize two sexes, male and female” – effectively reversing the Biden administration’s policies on DEI and transgender rights. The EO only applies to federal agencies, but could the concept gain traction in a Republican Congress?
Controversy Over Transgender Rights in Public Spaces
One of the big issues when discussing transgender rights is whether transgender individuals can access restrooms that align with their gender identity. What about transgender women competing in women’s sports, including the Olympics? While the public has become increasingly sympathetic to the transgender population, many would debate allowing a woman who was once a man to compete in women’s sporting events.
The EO is designed to address some of these concerns as its stated purpose is to keep women safe from men who “self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.” The EO further states that President Trump’s administration “will 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.”
Defining “Gender Ideology” Under the EO
The EO rejects the concept of “gender ideology,” defined as a “false construct” that “replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true.” The EO goes on to say that “Gender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.”
To effectuate the concept that there are only two sexes in the United States, the EO requires federal agencies to report to the administration on the changes the agencies are making to comply with the EO and on “agency-imposed requirements on federally funded entities, including contractors, to achieve the policy of this order.” While the policy is addressed to federal agencies, it rescinds a number of policies issued by the Equal Employment Opportunity Commission (EEOC) that do have an effect on private employers.
Impact on EEOC Policies and Workplace Protections
For example, the EO rescinds the 2024 Enforcement Guidance on Harassment in the Workplace. Under this Enforcement Guidance, the EEOC instructed employers—including private employers—that sex-based discrimination and harassment under Title VII includes discrimination based on sexual orientation and gender identity (or expression in the case of harassment) and that using incorrect pronouns or denying access to a bathroom or other sex-segregated facility could constitute unlawful harassment. The EEOC’s intent in passing this Enforcement Guidance was to comply with the United States Supreme Court decision in which the Court held that sex discrimination includes discrimination based on sexual orientation.
How the EO Affects Federal Contractors
As stated, the EO only applies to federal agencies and their employees. The EO, however, also seems to cover “agency-imposed requirements on federally funded entities, including contractors, to achieve the policy of this order.” Thus, it appears that the Office of Federal Contract Compliance Programs (OFCCP) will no longer be able to enforce its current policy that sex discrimination includes discrimination based on sexual orientation.
Subscribe for Updates
Subscribe to receive emails from us regarding timely legal developments and events in your areas of interest.