Employers may be confused about their legal obligations in the face of the Trump Administration’s campaign against transgender individuals. Legal experts are reminding business leaders that it is still unlawful for most employers to discriminate against transgender employees because of their gender identity. Neither executive orders nor EEOC policy shifts can change federal or state gender identity discrimination laws governing private sector employers.
Gender Identity Discrimination Violates Title VII
In 2020, the U.S. Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating on the basis of an employee’s transgender status.
Title VII is the primary federal statute governing employment discrimination by private sector employers with 15 or more employees. Title VII prohibits employers from discriminating against employees with respect to “compensation, terms, conditions, or privileges of employment,” on the basis of sex and other protected statuses.
In Bostock, the Supreme Court held that discrimination on the basis of “sex” includes discrimination on the basis of gender identity. The Court reasoned that “it is impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex.” The majority opinion was authored by Justice Neil Gorsuch, a Trump appointee.
Nothing has changed this core legal principle. “Bostock is still good law,” explained Allison Sues, Senior Employment Law Counsel at HR Source, via email.
Trump’s Executive Order Does Not Override Title VII Law On Gender Identity Discrimination
On January 20, 2025, President Trump issued Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The order directs federal agencies to enforce laws “to protect men and women as biologically distinct sexes.”
Private sector employers should understand that executive orders can’t change Title VII law or override the Supreme Court’s Bostock opinion. “Absent Congress amending Title VII, the Supreme Court has the final say on what a Federal Law means, and an Executive Order cannot change an interpretation of that law made by the Supreme Court,” explained Sues.
“A presidential administration cannot on its own rewrite the equal employment opportunity statutory scheme woven through the federal fabric by laws like Title VII,” said Christopher Ward, a labor and employment law partner at Foley & Lardner, via email.
This means that Executive Order 14168 does not eliminate Title VII’s legal prohibition against gender identity discrimination in the workplace. It is still illegal for private sector employers covered by Title VII to discriminate against employees on the basis of their transgender status.
EEOC’s New Agenda Does Not Override Title VII Law On Gender Identity Discrimination
The U.S. Equal Employment Opportunity Commission is the federal agency that investigates and enforces federal employment discrimination laws, including Title VII. The EEOC’s new Acting Chair, Andrea Lucas, issued a press release on January 28, 2025, in response to Executive Order 14168. In the release, the EEOC announced that its new priority “is to defend the biological and binary reality of sex.”
As part of this new agenda, the EEOC ended the use of the “X” gender marker during the agency’s intake process when employees file a charge of discrimination, and the agency removed “Mx.” from the list of prefix options. The EEOC also jettisoned its “pronoun app,” which had allowed its own employees to identify pronouns when communicating on Microsoft 365 platforms.
The EEOC also removed or is in the process of removing all materials “promoting gender ideology” from the agency’s internal and external websites, documents, and social media platforms. The agency has initiated a review of the content of its “Know Your Rights” poster, which employers covered by Title VII are legally required to post in their workplaces.
In addition, the EEOC filed motions to dismiss lawsuits alleging gender identity discrimination that the agency had previously filed on behalf of transgender and nonbinary employees.
Despite the EEOC’s retreat from gender identity discrimination claims, private sector employers should not view these agency moves as an actual change in federal law. Just as Executive Order 14168 can’t override Title VII or the Supreme Court’s Bostock decision, neither can the EEOC.
“The EEOC’s agenda cannot change a law passed by Congress or the Supreme Court’s interpretation of that law,” explained Sues.
The EEOC’s new agenda may, however, make it harder for employees to get their gender identity discrimination claims resolved directly by the agency. While the EEOC’s removal of gender identity guidance “does not change Bostock’s definitive statement that Title VII covers gender identity,” said Ward, “its withdrawal surely indicates that enforcing Bostock’s mandate will no longer be a priority for the EEOC.”
“It’s unlikely that the EEOC will take on these claims on behalf of employees over the next four years,” agreed Brittany L. Hynes, employment attorney at Tripp Scott, via email.
But the EEOC’s inaction does not change employers’ legal obligations to prevent gender identity discrimination in the workplace.
“While the EEOC is very unlikely to pursue litigation alleging gender identity discrimination on an employee’s behalf, the employee may still pursue these claims in Federal Court on their own – either pro se or though their own private attorney,” said Sues. “Employees still need to first file an EEOC charge to exhaust their claims before filing a lawsuit in Court,” Sues explained, but “the EEOC remains statutorily required to issue a Notice of Right to Sue for these charges.”
So although it might take longer for employees to pursue gender identity discrimination claims, that does not change the liability risk for employers. “Just because the EEOC is not going to be helpful does not mean [employees] won’t have a strong legal claim in court,” said Chai Feldblum, a former Democratic EEOC Commissioner, in a February 27, 2025 Bloomberg Law news report.
Many State Laws Also Prohibit Gender Identity Discrimination In The Workplace
“Employers should keep in mind that many state and local laws explicitly prohibit workplace discrimination because of an employee’s gender expression or identity,” said Sues. State and local laws are not impacted by executive orders or shifts in the federal EEOC’s agenda.
The laws in 23 states and Washington, D.C. expressly prohibit discrimination on the basis of gender identity, according to data from the Movement Advancement Project. Enforcement agencies in an additional eight states have interpreted their laws prohibiting sex discrimination to include gender identity discrimination.
Some of the state and local laws barring employment discrimination on the basis of gender identity apply to even smaller employers than Title VII.
These laws can also enable employees to bypass the EEOC. “Employees may also challenge gender identity discrimination at state or other local administrative agencies or in state court if applicable law prohibits discrimination against transgender employees,” explained Sues.
Key Takeaways For Employers On Gender Identity Discrimination
“Unless the Bostock decision is reversed,” said Hynes, “employers can anticipate that charges of discrimination based on gender identity will continue to be filed.”
“It is important to acknowledge that discrimination against transgender and nonbinary individuals remains illegal under federal law, as well as under many state and local laws,” said Paul O. Lopez, COO at Tripp Scott, via email. “So employers need to continue to take measures to ensure that these rights are protected.”
Note: This article does not constitute legal advice. Readers should consult an attorney with questions regarding gender identity discrimination claims.