Among the executive orders issued by President Trump on January 20, 2025, was one titled (the “Order”).
The Order’s stated purpose is to retract what it describes as the “deeply unpopular” and “radical” practices of President Biden. The Order specifically calls out the “injection of diversity, equity and inclusion” and states that such measures have corrupted our institutions by replacing “hard work, merit and equality.”
With that as preface, the Order goes on to list numerous prior executive orders that it is specifically revoking. Among them are:
- (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government);
- (Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation);
- (Revision of Civil Immigration Enforcement Policies and Priorities);
- (Protecting Worker Health and Safety); (Establishment of the White House Gender Policy Council);
- (Advancing Equity, Justice, and Opportunity for Asian Americans, Native Hawaiians, and Pacific Islanders);
- (Nondisplacement of Qualified Workers under Service Contracts); and
- (Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals) among many others.
The White House also issued an Inauguration Day executive order titled (“Order 2”) which states that it is the policy of the United States to recognize two sexes, male and female, as defined therein. Under Order #2, gender identity shall no longer have a place in any decision-making nor in determinations associated with access to bathrooms, programs, housing or other federally supported operations.
Pursuant to Order 2, laws and practices shall refer to only “sex” and not “gender,” and sex is deemed to be determined biologically at the time of conception: male or female. Order 2 additionally directs all agency heads to rescind all contrary guidance and to report an update on the implementation Order 2’s requirements within 120 days. In contradiction with Guidance issued by the Equal Employment Opportunity Commission, Order 2 requires all agencies to “give the terms “sex”, “male”, “female”, “men”, “women”, “boys” and “girls” the meanings set forth in section 2 of [Order 2] when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications.”
As described above, many of these now-revoked Executive Orders involve equal opportunity for individuals based on race, gender, gender identity, and sexual orientation. While these orders have been revoked, both state and federal laws continue to prohibit discrimination on the basis of these characteristics. In fact, the United States Supreme Court in 2020 recognized that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity. As the Supreme Court specifically stated in Bostock, “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Therefore, employers should continue to enforce their policies prohibiting discrimination, including in accord with the Bostock decision.
This is of course a rapidly evolving area of law, and we will continue to monitor and keep our readers updated.
