US: How Have Trump’s Executive Orders Impacted Workplace Gender Rights?

Genna Wolinsky, Legal Analyst

Genna is a US Legal Analyst who came to McO with a background in plaintiff’s-side litigation and class-action lawsuits. At McO, she focuses on employment, higher education, and sexual abuse cases. She plans to qualify as a US lawyer in the future.

Trump’s second term has opened with a flurry of executive actions that have sought to unpick legal protections for minority groups. While the Trump administration’s attacks on diversity, equity, and inclusion (DEI) initiatives have been well documented, the impact of his executive actions on employment law is less clear. For transgender, intersex, and nonbinary individuals, the Trump administration’s flat-out denial of the concept of gender identity is explicitly laid out in his order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

The order sets out the current administration’s beliefs in stark language: “It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

The order further states:

“(a)  ‘Sex’ shall refer to an individual’s immutable biological classification as either male or female.  “Sex” is not a synonym for and does not include the concept of ‘gender identity.’

(d)  ‘Female’ means a person belonging, at conception, to the sex that produces the large reproductive cell.

(e)  ‘Male’ means a person belonging, at conception, to the sex that produces the small reproductive cell.”

This order removes an individual’s right to legally change their sex classification to match their gender identity in ways that they were formerly able to. Previously, many states allowed individuals to change their gender markers on their driver’s licenses, while the State Department allowed for the same and permitted non-binary individuals to designate their gender as “X” on passports. Now, by declaring that sex is immutable and must refer to the sex that a person was assigned at birth, the Trump administration has sought to remove all “nontraditional” gender identities from government-issued documents.

In the context of workplace rights, this order jeopardizes the ability of transgender, intersex, and nonbinary people to bring claims of discrimination for harassment or differential treatment they encounter as a result of their gender identity, first by invalidating the existence of their identity as a whole, and second by attempting to rescind current federal guidance in place which explicitly protects against discrimination on the basis of sexual orientation and gender identity.

The order directs the Chair of the Equal Employment Opportunity Commission (EEOC), the federal agency designed to enforce laws related to workplace harassment, to rescind parts of its Guidance on Harassment in the Workplace relating to “gender ideology.” The EEOC’s guidance, published in 2024, affirms that gender is a legally recognized ground for a claim of discrimination: “Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity.” It further explains that individuals are protected from harassing conduct on these grounds in the form of:

• Epithets related to their sexual orientation or gender identity
• Physical assault on the basis of their gender identity
• Being “outed” by a colleague
• Misgendering
• The denial of access to a bathroom or other sex-segregated facility that is consistent with one’s gender identity

How will the proposed changes affect employees?

Although neither Trump nor the head of the EEOC have the power to unilaterally change the EEOC’s guidance – the EEOC reserves certain matters, including its guidance, to majority vote – a recent press release from the EEOC indicates that the agency intends to implement the Trump administration’s erasure of gender identity nonetheless. If the EEOC follows through on this, it will be a devastating blow to transgender, intersex, and nonbinary employees, who will see their ability to seek recourse for harassment, discrimination, or unfair treatment in the workplace limited or removed.

However, it is worth remembering that various states have their own legislation providing protections against gender-based discrimination. See the Movement Advancement Project’s Equality Map on state nondiscrimination laws that offer protections for LGBTQ+ individuals. While it remains to be seen how employers and courts intend to manage the conflict between state and federal law, employees living in states with laws protecting against gender-based harassment remain able to file claims in state courts as before.   

However, the exact scope of this and other recent executive orders remains unclear. In addition to requiring federal agencies to exclude “gender ideology” in their internal policies, communications, and other materials, recent executive actions seek to limit workplace rights by:

• Stipulating that intimate sex-designated spaces such as bathrooms and locker rooms are to be designated by sex and not identity (i.e. the order requires that employees must use spaces that accord with the sex they were assigned at birth, even if that does not align with their gender identity).
• Dismantling the White House Gender Policy Council, a body designed to advance gender equality and combat systemic biases and discrimination.

These executive orders show a clear disdain for the identities of transgender, intersex, and nonbinary individuals, both in the workplace and in their daily lives. A growing number of legal challenges to these orders are being brought in courts around the US. Their outcomes will be crucial in defining the scope of gender rights in the workplace, and in the nation at large.

While the orders are dismaying, they are not yet binding law. We encourage anyone who has been a victim of gender-based workplace discrimination to contact us for a no-cost initial consultation. If there is a path to securing justice, we will help fight for your rights.