Trump Redefining ‘Sex’ Sets Up Clash Over High Court Protections

President Donald Trump’s order directing the federal government to recognize only two sexes is set to draw legal challenges as it clashes with recent interpretations of a US Supreme Court ruling that cemented anti-bias protections for LGBTQ+ workers.

The Day One executive order requires agencies, including the US Equal Employment Opportunity Commission, to change any documents, regulations, or guidance to reflect that male and female are the only two immutable sexes. It directly challenges Biden administration policies like the EEOC’s recent workplace harassment guidance, which stem from the Bostock v. Clayton County decision expanding the scope of LGBTQ+ protections under Title VII of the 1964 Civil Rights Act.

The order addressing so-called “gender ideology extremism” is part of Trump’s broader push to roll back Biden-era diversity, equity, and inclusion policies. It undercuts how some federal courts have now defined the bounds of protections under Title VII, including the deeply conservative US Court of Appeals for the Eleventh Circuit, which found that misgendering could contribute to a hostile work environment claim.

“This is sort of an ideological mandate on the agencies that don’t comport with what the courts have said,” David Lopez, a Rutgers Law School professor and former EEOC general counsel under Obama, said. “The EEOC doesn’t just pull this out of thin air. You’ve had appellate courts who have ruled consistent with the EEOC position.”

Trump’s executive order also directs the Departments of State and Homeland Security, and the director of the Office of Personnel Management, to ensure that all government-issued identification documents like passports, visas, and global entry cards “accurately reflect the holder’s sex, not their gender.”

Bostock was the foundation for agency actions like the EEOC’s harassment guidance addressing gender identity protections, which advises employers against misgendering and barring employees from using the bathrooms fitting the gender with which they identify.

Bostock‘s Reach

Although Bostock held that discrimination could be based on sexual orientation and gender identity, there’s an “open question about whether or not things like gender-neutral bathrooms or misgendering” are covered by the statute,” said Stacy Hawkins, a constitutional and employment law professor at Rutgers Law School.

At least one federal judge in 2022 sided with opponents that the Biden administration illegally broadened Title VII’s scope by saying that Bostock covers workplace policies on bathrooms, dress codes, and locker rooms.

That same judge, a Trump-appointee judge at the US District Court for the Northern District of Texas, is currently overseeing a case over the agency’s finalized guidance.

Before Bostock, the first Trump administration clashed with the EEOC on transgender protections, filing a brief opposing the commission’s stance that gender identity is covered under Title VII. The agency’s case brought on behalf of a transgender worker was ultimately decided in the employee’s favor as part of the Bostock decision.

“They’re now trying to achieve through executive action, at least in terms of the terms of federal enforcement agencies, what they could not achieve in court,” Lopez said.

Lawsuits to Come

The order sets the stage for the US attorney general to issue guidance to agencies to “correct the misapplication” of Bostock and assist agencies in “protecting sex-based distinctions.” In accordance with that guidance, the Labor Department’s secretary, and the EEOC’s general counsel and chair must “prioritize investigations and litigation to enforce the rights and freedoms identified,” Trump said.

Legal and advocacy groups swiftly condemned the order, which will likely be challenged in court.

Shiwali Patel, senior director of safe and inclusive schools at the National Women’s Law Center, said groups, including her’s, are analyzing the executive order and determining next steps. They’re also waiting to see what the agencies may say or do in response, she said.

“They can’t undo what the Supreme Court has very clearly held in Bostock and that many other courts have also affirmed in the context of other spaces, like educational spaces, schools, under Title IX. That is clear law, it’s clear precedent,” Patel said.

Agency Action

Aside from litigation, the EEOC will have a choice in whether and how it responds to the Trump’s mandate to rescind its harassment guidance.

Newly appointed Acting EEOC Chair Lucas signaled a commitment Tuesday to follow through with the Trump orders on both defining two sexes and DEI.

If the EEOC is left to vote on the guidance, however, Democrats will hold the majority until next year due to staggered terms, and may be reluctant to rescind it.

“Moreover, like all workers, LGBTQI+ workers – including transgender workers – are protected by federal law and entitled to the full measure of America’s promise of equal opportunity in the workplace,” Commissioners Charlotte Burrows, Jocelyn Samuels, and Kalpana Kotagal said in a statement Tuesday.

Even if the EEOC doesn’t withdraw the guidance, it’s likely to change the direction of its enforcement actions, employment law attorneys said.

“I’m not sure if the EEOC is going to be pursuing any sort of transgender claims,” said Mike Elkins, founder and partner of Florida-based MLE Law.