On January 20, 2025, President Trump issued an Executive Order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which – despite its rhetoric – cannot unilaterally change Supreme Court precedent, EEOC precedent, or certain EEOC guidance documents that guarantee protections from workplace discrimination on the bases of sexual orientation and gender identity. Federal law prohibits discrimination on the bases of sexual orientation and gender identity in all workplaces, including the Federal government. Despite what Trump’s EO purports to do, these protections remain the law of the land.
In 2020, the Supreme Court decided Bostock v. Clayton County, in which the Court explained that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” In Bostock, the Court was interpreting Title VII, a federal law that prohibits workplace discrimination on the basis of sex, in addition to other protected categories. Therefore, the Court held that discharging an employee because of sexual orientation or gender identity is unlawful sex discrimination that violates Title VII. An Executive Order cannot change this binding Supreme Court precedent, and the law remains that Title VII’s prohibition against sex discrimination extends to sexual orientation and gender identity.
In April 2024, the EEOC issued its long-awaited Enforcement Guidance on Harassment in the Workplace. In the guidance document, with reference to many favorable federal court decisions affirming protections for LGBTQ+ workers, the EEOC defined harassment based on sexual orientation or gender identity to include:
- Epithets regarding sexual orientation or gender identity;
- Physical assault due to sexual orientation or gender identity;
- Outing (disclosure of an individual’s sexual orientation or gender identity without permission);
- Harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex;
- Repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or
- The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
This Harassment Guidance remains in effect until the EEOC rescinds it, which it acknowledges it cannot do until it has a quorum of three Senate-confirmed Commissioners (there are currently two).
LGBTQ+ Federal employees are entitled to strong protections pursuant to Bostock and the EEOC’s prior decisions. In a long line of pre-Bostock decisions, the EEOC has affirmed the rights of Federal employees to be free from discrimination on the bases of sexual orientation and gender identity, including with respect to bathroom use. Some EEOC decisions on gender identity include Macy v. Dep’t of Justice, in which the EEOC held that discrimination based on gender identity is discrimination based on sex in violation of Title VII, Jameson v. U.S. Postal Serv., in which the EEOC held that repeated, intentional misgendering of a transgender employee may constitute sex-based harassment, and Lusardi v. Dep’t of the Army, in which the EEOC held that a supervisor’s repeated and intentional misgendering of a transgender employee in addition to denial of bathroom access subjected the complainant to a hostile work environment based on her sex.
President Trump’s Executive Order requires that Federal agencies de-emphasize investigations and procedures to protect the rights of LGBTQ+ Federal workers, so we may see Federal workers sidelined when trying to assert these rights. For example, the EEOC may refuse to investigate complaints of discrimination on the basis of sexual orientation or gender identity or dismiss EEO complaints asserting those bases. Additionally, EEO counselors may incorrectly advise federal employees initiating EEO contact for sexual orientation or gender identity discrimination that they don’t have protections. Federal employees should remember that they must initiate contact with an EEO investigator within 45 days of any discriminatory conduct in order to assert their rights and that, regardless of the EEOC’s conduct, they are still entitled to take their case to federal court 180 days after filing a formal EEO complaint. A federal court reviews these cases de novo, without consideration of the agency’s actions regarding the case, and are required to follow Supreme Court precedent, including Bostock.
If you have questions or concerns about how this Executive Order could impact your employment, or have experienced discrimination on the basis of your sexual orientation or gender identity, please contact us.
