By: Emma Wilcox
Introduction
In 2020, the U.S. Supreme Court held for the first time that Title VII’s protections against “sex” discrimination encompass discrimination on the basis of gender-identity and sexual orientation. Just last year, the EEOC updated its Enforcement Guidance on Harassment in the Workplace to expressly cover these protections.
The new presidential administration wasted no time addressing this interpretation. On the first day of his second term in office, President Trump issued Executive Order #14168 “EO #14168” titled, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This executive order is in conflict with the new guidelines of the EEOC. EO #14168 explicitly states the term “sex” does not include the notion of gender identity as a concept. Further, the Executive Order instructs the Attorney General to “correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities.”
President Trump designated Andrea Lucas as Acting Chair of the EEOC. Not surprisingly, her comments have echoed the policy direction of the Executive Order. She has been quoted as stating that one of her priorities would be “defending the biological and binary reality of sex and related rights”(EEOC Newsroom). President Trump also dismissed two Democratic commissioners (of five total) of the EEOC, which results in the commission no longer holding a bipartisan quorum. While the Commission has yet to revise its guidance on this issue, the EEOC has since dismissed at least six claims relating to discrimination against transgender employees.
This article examines the relationship between current EEOC guidelines, federal law and caselaw, and President Donald Trump’s attack on gender ideology. We also provide an analysis of the potential consequences of the recent executive order on protecting transgender and non-binary employees from workplace sex discrimination.
Federal Caselaw
Bostock v. Clayton County (2020) addresses the definition of “sex” in Title VII, holding that it includes gender identity and sexual orientation. Gerald Bostock, Donald Zarda, and Aimee Stephens claimed they were fired from their jobs on the basis of their sexual orientation and/or gender identity. Their employers argued the firings were lawful because while Title VII of the Civil Rights Act (“CRA”) included “sex” as a protected characteristic, this concept did not include the traits of being gay or transgender. In an opinion authored by Justice Gorsuch, the court ruled in favor of the employees. In a 6-3 decision, the majority ruled that misconduct towards anyone due to sexual-orientation and gender identity is included under “sex discrimination” as referred to in Title VII of the CRA. The court stated that an employer who dismisses an employee for being gay or transgender is inherently thinking about the sex of the employee when making their decision.
EEOC Guidelines Today
Under the most recent guidelines, the EEOC confirms that sex discrimination (towards anyone) is unlawful in the workplace. These guidelines are rooted in legal standards set by the CRA that were recently interpreted to be more explicit in their protections for transgender people after the Supreme Court’s landmark decision of Bostock v. Clayton County (2020) expanded workplace protections for the LGBTQ+ community under Title VII (AP News).
The guidance published in April 2024 make clear, “Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity”. Under Section 5.C., “sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed”. Further, “harassment based on sex under Title VII also includes non-sexual conduct based on sex, such as sex-based epithets; sexist comments (such as remarks that women do not belong in management or that men do not belong in the nursing profession); or facially sex-neutral offensive conduct motivated by sex (such as bullying directed toward employees of one sex).”.
In addition, employees are protected from sexual and non-sexual gender-based harassment by a supervisor, co-worker, and other people in their workplace, as well as safeguarded from any retaliatory response for submitting a complaint about sex discrimination or being associated with someone who has done so (Enforcement Guidance for Harassment in the Workplace) Being “regularly and intentionally misgendered by supervisors, coworkers, and customers” or deliberately keeping an employee from accessing bathrooms which align with their gender identity is considered harassment in the workplace under the EEOC guidelines. Despite this progress in civil protections, President Trump’s Executive Order threatens the shield offered by modern interpretations of Title VII.
EEOC Contradicts Its Own Guidelines
The EEOC dismissed six cases of its own regarding gender discrimination in the workplace earlier this year, claiming the cases conflict with EO #14168 (AP News). Each dismissed case involved a non-binary or transgender complainant, which signals an alarming shift of attitudes towards sex discrimination by the commission of the EEOC. The greatest cause for concern within this decision is that the EEOC dismissed six cases of their own, meaning the agency had already conducted some portion of an investigation into the original claims before abruptly deciding to remove them from their agenda. Former EEOC General Counsel David Lopez told the San Francisco, “[for the EEOC] to discriminate against a group, and say, ‘We’re not going to enforce the law on their behalf’ itself is discrimination.” He added, “It’s like a complete abdication of responsibility.”
The EEOC guidelines make clear that causation is critical to any harassment claim. The asserted discrimination must be “because of” a protected characteristic. The trait of “Sex” having been stripped of its nuance to include gender identity and sexual orientation creates challenges for LGBTQ+ community members to submit discrimination claims based on these characteristics. Tangible actions in a work environment exercised to disenfranchise transgender employees are even harder to prove now that this characteristic is under political warfare. In one of the cases recently dismissed by the EEOC, a transgender housekeeper was repeatedly misgendered by a supervisor (AP News); up until EO #14168, this would qualify as discrimination against someone on the basis of sex. The EEOC is acting against the ideals of their own guidance by dismissing this case.
Intersectional harassment, as noted in the EEOC guidelines, may be curtailed by the limited definition of sex that has been posed by the Trump administration. Another case dismissed by the EEOC this past February involved a transgender restaurant cashier. This person was called racist and homophobic slurs by coworkers before being terminated out of retaliation for complaining (AP News). Despite facing mistreatment based on race and sex, the plaintiff’s case was dismissed by the EEOC due to its inclusion of gender-based harassment as sex discrimination. The intersectionality of the claim was narrowed when the EEOC dismissed the case strictly based on its interpretation of sex discrimination. While intersectional harassment is not limited to gender and race related issues, it is important to note the principle: the EEOC guidelines do not have to guarantee the same protections from harassment, of many forms, as they used to before EO #14168. While the EEOC may have the same guidelines as they did in 2024, sex discrimination claims in 2025 are at risk due to administrative warfare against gender identity and expression.
EEOC Guidelines vs. Executive Orders – What Do You Do?
It is perhaps not surprising that the Administration has approached this issue in a manner that creates more issues than it resolves. Unless the Supreme Court eventually backtracks on Bostock v. Clayton County (2020), the Executive Order directly contradicts not only controlling law, but also its own guidelines. While a reasonable argument can be made that the EEOC has the right to select its own enforcement priorities for its own cases, Bostock and the EEOC guidelines remain the law in cases brought by other plaintiffs.
It is unsettling to think that after decades (if not, centuries) of expanding civil rights, we are moving backwards from federal protections and moving towards state jurisdiction of equity and safety. EO #14168 and its implications lead to the ultimate question: If the EEOC is going to define gender strictly as binary (man or woman), how will we analyze discrimination on the basis of gender identity? Title VII protects someone if “state and local laws differ,” but this safeguard is weak when executive orders aim to supersede federal law. Unlike California, there are states without commissions dedicated to addressing claims from citizens regarding discrimination based on state-wide or locally protected characteristics and therefore rely on the EEOC for such matters. How are discrimination cases based on gender identity going to be handled in states that do not include transgender status as a protected characteristic?
Conclusion
The EEOC guidelines remain unchanged despite executive orders threatening their purpose of prohibiting workplace harassment and ultimately, discrimination. This comprehensive set of instructions laid the groundwork for employers across the nation to ensure a culture of inclusion and equity in the workplace. Going back to the Civil Rights Era, decades of progress and education established the proper nuance necessary for using Title VII to address the complexities of modern workplace discrimination.
The EEOC cites EO #14168, “declaring that the government would recognize only two “immutable” sexes — male and female,” as the reasoning for dismissing six of its own cases where each original complaint claims discrimination against a non-binary or transgender employee (AP News). It is unclear whether the EEOC is going to amend their guidelines to reflect EO #14168, or decline to enforce the current guidelines that interpret sex discrimination as it was established in Bostock v. Clayton County (2020) when deliberating future Charges of Discrimination.
Transgender status is not the only workplace identity in question: Trump’s attacks on diversity, equity, and inclusion (DEI) initiatives across all industries demonstrate this administration’s commitment to reversing progressive policies and limiting the newly found freedoms of minorities. EO #14168 was designed to silence transgender and non-binary people from speaking out about their gender identity, and return to an exclusive world these groups have long been fighting for space to exist in. It begs the question of whether the Trump administration will prosecute workplaces that have acted in favor of transgender and non-binary employees (like their actions towards workplaces who practiced DEI policies). Ultimately, the dismissal of six gender identity discrimination cases merely weeks following EO #14168 signals a difficult road ahead for establishing fair and equitable workplaces for all.
For more information on this matter, please contact Emma Wilcox.