Sexual Orientation and Gender Identity in the Trump Administration

Part I: Background and General Impact of the Executive Orders

On his first day in office, Jan. 20, 2025, President Donald Trump issued an executive order (EO), "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government," that is reshaping the federal government's stance on sex and gender.

The EO redefines "sex" strictly as male or female, based on an individual's immutable biological classification, and places new requirements on federal agencies and contractors regarding how they handle subjects related to gender identity.

Shortly thereafter, on Feb. 5, 2025, the administration promulgated a second EO – titled "Keeping Men Out of Women's Sports" – banning "male competitive participation" in women's sports.

Binary Sex Distinctions

The Jan. 20 EO explicitly declares – and the Feb. 5 EO reaffirms – that the federal government will recognize only two sexes: male and female. It asserts that the claimed ideological shift surrounding gender has "depriv[ed] [women] of their dignity, safety, and well-being," purportedly by enabling individuals to self-identify as women and gain access to spaces intended for women. The EO emphasizes that the distinction between sexes is based on immutable biological factors such as reproductive anatomy. According to the EO "Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government," the executive branch will enforce laws seeking to promote the recognition of two sexes.

The Jan. 20 EO mandates the following:

1. Guidance on Sex-Based Definitions. Within 30 days, the U.S. Department of Health and Human Services Secretary must provide the government, external partners and the public clear guidance concerning the sex-based definitions outlined in the EO.
2. Enforcement of Sex-Based Rights. Federal agencies and employees must enforce laws related to sex-based distinctions, using "male" and "female" based on biological sex, as defined in the EO – including in their interpretation or application of statutes, regulations or guidance.
3. Use of "Sex" Instead of "Gender." Federal agencies and employees must use "sex" rather than "gender" when acting in an official capacity, including in all applicable federal policies and documents. For example, agency forms must now list "male" or "female," rather than requesting an individual's gender identity.
4. Sex Classifications in Government Identification. Government-issued IDs, such as passports and visas, must now reflect only biological sex, as defined by the EO. Personnel records of federal employees must also reflect their binary sex identification as outlined in the EO.
5. Removal of Gender Ideology from Public Statements. Agencies must remove or cease all internal or external communications promoting policies or regulations that promote gender ideology as defined under the EO.
6. Bostock v. Clayton County's Application to Single-Sex Spaces Under Title IX. The EO rejects the idea that the Bostock decision – a landmark decision by the U.S. Supreme Court holding that discrimination on the basis of sexual orientation or gender identity is sex discrimination – requires gender identity-based access to single-sex spaces including under Title IX. The U.S. Attorney General (AG) is directed to issue guidance clarifying the application of Bostock to sex-based distinctions in gender activity and assist agencies in protecting sex-based distinctions.
7. No Federal Funding for Gender Ideology. Federal funds cannot be used to promote gender ideology, and agencies must ensure that grant conditions do not support such principles.

The Feb. 5 EO also adds the following:

1. Reservation of Women's Sports "for Women." The U.S. Department of Education Secretary is directed to protect all-female athletic opportunities and locker rooms, including by "specifying and clarifying that women's sports are reserved for women" and resolving any pending litigation in line with this EO's mandate.
2. Bring Title IX Enforcement Actions Against Institutions Not Aligned with this EO. The Education Department Secretary is also ordered to "prioritize" enforcement actions against any educational institutions that "deny female students an equal opportunity to participate in sports and athletic events by requiring them, in the women's category, to compete with or against or to appear unclothed before males." The enforcement scope includes athletic associations, as well as educational institutions.
3. Rescinding Funding of Noncomplying Programs. Federal agencies are tasked with reviewing grants to educational institutions and revoking funding supporting institutions deemed noncompliant with the EO.

Single-Sex Spaces

The Jan. 20 EO outlines several examples of federal institutions and facilities, described as "Intimate Spaces," where it mandates that binary sex distinctions be maintained. Locker rooms are a primary example of such spaces, along with women's prisons and detention centers and women's shelters and housing. The EOs demand the following actions:

1. prohibiting transgender individuals from being detained in women's prisons
2. mandating that the U.S. Department of Housing and Urban Development Secretary prepare a policy rescinding the final rule "Equal Access in Accordance with an Individual's Gender Identity in Community Planning and Development Programs" and create a policy concerning biological women in single-sex rape shelters
3. requiring the Federal Bureau of Prisons to revise its policies concerning medical care based on the EO and ensuring that no federal funds are spent on medical procedures, treatments or drugs used for the purpose of conforming an inmate's appearance to that of the opposite biological sex
4. mandating relevant agencies take appropriate action to ensure that intimate spaces are designated by biological sex, not gender identity

Federal Courts Block Enforcement of Trump Administration EO

On Jan. 26, 2025, a lawsuit was filed in the U.S. District Court for the District of Massachusetts on behalf of a transgender woman who imminently faced a transfer to a men's prison and the loss of related medical treatments. The federal judge issued a temporary restraining order (TRO) the same day, preventing both the transfer and discontinuation of care. The case was later transferred to the federal district court in the jurisdiction where she is incarcerated.

On Feb. 4, 2025, a federal judge in the U.S. District Court for the District of Columbia also issued a TRO blocking President Trump's EOs. Three transgender women currently housed in women's facilities and receiving related treatments brought the case. The judge determined that the plaintiffs demonstrated they would suffer "irreparable harm" if the EOs were not blocked based on Eighth Amendment rights to safety and adequate medical care during incarceration

Part II: Immediate Impact on Federal Employers

The Future of Bostock in the Trump Administration

The decision to take aim at the Supreme Court's 2020 ruling in Bostock v. Clayton County has left many wondering about its application. In Bostock, the Supreme Court held that discrimination based on sexual orientation or gender identity is inherently a form of sex discrimination. This decision extended gender-based workplace protections. Title VII had already protected employees from discrimination based on their sex, and this decision made gender and sexual orientation discrimination a part of "sex" discrimination under employment law. This decision was pivotal in affirming the rights of LGBTQ+ individuals in employment settings, ensuring their protection from discrimination.

However, the Jan. 20 EO specifically called out the prior administration's interpretation of the Bostock ruling as "legally untenable" as one that "has harmed women." The EO calls on the AG to issue new guidance to agencies to "correct the misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020)" regarding sex-based distinctions in agency activities. Though an EO cannot overturn a Supreme Court ruling, it certainly begs the question of how the EOs will impact the application of Bostock in private workplaces.

Today, Bostock is still good law. Unless it is reversed by the current Supreme Court, employers must continue to adhere to the decision, implementing policies against discrimination based on sexual orientation and gender identity. However, the Trump Administration's stance on the issue signals a potential shift in how sex-based distinctions will be treated by courts in the future. What the AG's guidance to private employers will look like, and how it can reconcile these seemingly opposing stances, are currently open questions.

EEOC at a Crossroads

On Jan. 28, 2025, acting on the instructions of the Jan. 20 EO, the U.S. Equal Employment Opportunity Commission (EEOC) rescinded its Enforcement Guidance on Harassment in the Workplace. EEOC Acting Chair Andrea Lucas stated this rollback of the "Biden administration's gender identity agenda" was made in furtherance of the Trump EO regarding sex and gender. So far, the EEOC, through Lucas, has taken the following steps in revising its own practices:

• announced that one of Lucas' priorities – for compliance, investigations and litigation – is to defend the biological and binary reality of sex and related rights, including women's rights to single-sex spaces at work
• removed the "pronoun app," a feature in EEOC employees' Microsoft 365 profiles, which allowed an EEOC employee to opt to identify pronouns, content that then appeared alongside the employee's displayed name across all Microsoft 365 platforms, including Outlook and Teams
• ended the use of the "X" gender marker during the intake process for filing a charge of discrimination
• Directed the modification of the charge of discrimination and related forms to remove "Mx." from the list of prefix options;
• commenced review of the content of the EEOC's "Know Your Rights" poster, which all covered employers are required by law to post in their workplaces
• removed materials promoting gender ideology on the EEOC's internal and external websites and documents, including webpages, statements, social media platforms, forms, trainings and others (ongoing)

The EEOC's now-rescinded Enforcement Guidance on Harassment in the Workplace had provided a framework for employers to identify and address harassment issues under Title VII of the Civil Rights Act of 1964 – with a focus on harassment under Bostock. Without this guidance in place, it leaves open the question of same sex and gender identity discrimination under Title VII. Even without clear guidance, it is crucial for employers to continue adhering to existing laws prohibiting workplace harassment. It will be especially important for employers to review and update their policies and training programs to ensure they align with current legal standards and best practices.

Part III: Immediate Impact on Federal Grantees

Though most of the EO is generally aimed toward changing federal policy and enforcement of the law as applied within the federal government, it is important not to overlook subparagraph (g) of Section 2, which provides "Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology." Similar to its approach to diversity, equity and inclusion (DEI) programs in its Jan. 21, 2025, EO "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," the Trump Administration seeks to impose its policies on private employers as a result of receipt of federal grants. (For more on this EO, see Holland & Knight's previous alert, "DEI on the Ropes? The Future of DEI in the Trump Administration," Feb. 10, 2025.)

Takeaways and Open Questions

• The EOs' strict binary sex definitions have broad impacts across multiple sectors. Federal agencies and federally funded organizations need to recognize the administration's definition of "sex," which excludes "gender identity" and defines sex as "an individual's immutable biological classification as either male or female," as well as abide by the new single-sex space protections. This immediately impacts schools, athletic teams and locker rooms, prisons, government housing and more.
• Recipients of federal funds (i.e., government grantees) should consider the implications of the EO to their organization. Grantees should consider whether their grant was awarded to, as the EO states, "promote gender ideology." If that is the case, grantees should be mindful that the government may seek to terminate the grant and take other related actions. What actually constitutes "promote gender ideology" may be unconstitutionally vague, but at this point it may be difficult to tell.
• Recipients of federal funds should also consider whether the award of their grant resulted, at all or in part, as a result of "grantee preferences." Historically, many federal grants have been awarded on a preference system. Again, in the present case it may be impossible for a grantee to know whether it received any preference in receipt of an award. As such, grantees should be mindful of the potential for the government to claim a preference and, thus, terminate a grant.
• Though Bostock continues to prohibit sexual orientation and gender identity discrimination, the administration declared that it will limit the effect of its holding as interpreted by previous administrations and others. Pursuant to the EO, the AG has been directed to issue guidance that both 1) directs agencies that Bostock shall cease to be applied in a manner that "requires gender identity-based access to single-sex spaces" and 2) protects sex-based distinctions, which are explicitly permitted under constitutional and statutory precedent.
• Based on the administration's view of Bostock, all employers should expect that government enforcement actions in connection with discrimination based on sexual orientation and gender identity will decrease significantly. Thus, for example, expect fewer investigations and legal interventions in such cases as the administration will likely shift priorities away from these protections.
• The EEOC has already implemented some changes, both to its own practices – including changing the labeling of forms, policies and directives – as well as to how it is handling gender orientation and identity cases brought to the EEOC. Lucas announced the EEOC's compliance priority will be to defend "biological and binary reality of sex and related rights, including women's rights to single-sex spaces at work."
• Employers must ensure their policies and training programs are aligned with the broader legal standards of Title VII, despite the absence of detailed EEOC guidelines. This requires a proactive approach to policy review and updates.

If you have any questions about how your institution should adapt its practices based on these EOs, please contact the authors of this article. If you are interested in conducting a full audit of your company's sex, gender or other DEI policies and practices, please contact a member of Holland & Knight's DEI Task Force.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.