Sex or Gender – Do Federal Changes Impact Employers?
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APPLIES TO All Employers |
EFFECTIVE January 20, 2025 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion:
In “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” the White House is seeking to distinguish “sex” from “gender” in every aspect of the federal government, from federally-issued identification documents to anti-discrimination protections.
What Does the Executive Order Do?
The Executive Order defines “sex” as an individual’s biological classification, recognized only as “male” and “female” as determined at conception. “Sex” specifically does not include “gender identity.” The Order also categorizes “gender ideology” as “self-assessed gender identity” that is “disconnected from one’s sex.”
Federal agencies are directed to enforce federal laws based on this definition of sex, using the term “sex” rather than “gender,” and must take appropriate action to ensure that “intimate spaces” designated for females and males are designated by sex and not identity. Federal agencies tasked with enforcement of the Civil Rights Act of 1964 “shall prioritize investigations and litigation to enforce the rights and freedoms identified.”
All references to gender ideology are to be removed from the federal government and a number of federal guidance publications are rescinded, including those addressing LGBTQ+ in education and the Equal Employment Opportunity Commission’s “Enforcement Guidance on Harassment in the Workplace” (April 29, 2024). Moreover, “[f]ederal funds shall not be used to promote gender ideology.”
The Order seeks to counter “ideologues who deny the biological reality of sex” by using legal and other socially coercive means to “permit men to 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.”
What is the Current Law?
Title VII of the Civil Rights Act prohibits discrimination on the basis of sex. In 2020, the U.S. Supreme Court in Bostock v. Clayton County said that Title VII protections for “sex” include sexual orientation and transgender status. The Court stated that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” The Supreme Court acknowledged that Title VII was likely not written with the intent of protecting sexual orientation or transgender status, but it was also not likely originally written to protect discrimination on the basis of motherhood or prohibit the sexual harassment of male employees – yet it has been interpreted to protect individuals on these bases. The Supreme Court stated that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
For clarity, the Supreme Court said that “the question isn’t just what ‘sex’ meant, but what Title VII says about it.” Specifically, Title VII prohibits employers from taking certain actions “because of” sex, which also includes the meanings “by reason of” or “on account of.” So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” (Emphasis added.) For example, “an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
Additionally, most state laws prohibit discrimination and harassment on the basis of gender identity and/or transgender status, including but not limited to, California, Colorado, Connecticut, Delaware, D.C., Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, and Washington. A number of local laws also protect gender identity and/or transgender status.
Further, a number of courts and states recognize “gender dysphoria” as a qualified disability under the Americans with Disabilities Act (ADA) and similar state disability protection laws. Gender dysphoria refers to the psychological distress that can happen when a person’s gender identity differs from their sex assigned at birth. This means that, regardless of any protections under Title VII, employers are required to engage in the interactive process to determine whether a reasonable accommodation can be made based on a person’s qualified disability, absent undue hardship to the employer.
Ultimately, the Executive Order does not override or change existing legislation and judicial rulings on discrimination prohibitions. Employers still cannot discriminate on the basis of sexual orientation or transgender status.
What Does this Mean for Employers?
Employers must still follow federal and state anti-discrimination and anti-harassment laws. However, the Executive Order has indicated this Administration’s intention to prosecute those who interpret Title VII (and Title IX) to protect gender identity in the context of “intimate spaces,” such as bathrooms and changing rooms. This position directly conflicts with a number of state laws that require the opposite. Employers should consult with legal counsel on how to address internal employee conflicts related to gender identity and transgender status.
For any employer who receives federal funds, like grants and federal contracts, funding will likely be withheld for adhering to or otherwise supporting “gender ideology.” To the extent that businesses can track and distinguish the use of federal funds within their operations, they may still be able to benefit from federal funding and adhere to existing law. Employers should consult with legal counsel to determine enforceability of federal contracts. The Executive Order is currently being challenged in court, so employers should continue to watch this topic for further development.
Action Items
- Review anti-discrimination requirements with legal counsel.
- Locate and review anti-discrimination and disability accommodation policies.
- Evaluate anti-harassment training provided to employees.
- Have appropriate personnel trained on current legal requirements.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase