Legal Experts Clarify: Gender Identity Discrimination Remains Illegal in the Workplace

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.

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 cannot change Title VII law or override the Supreme Court’s Bostock opinion.

EEOC’s New Agenda Does Not Override Title VII Law on Gender Identity Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) 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. The EEOC announced that its new priority is to defend the biological and binary reality of sex. 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.

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. State and local laws are not impacted by executive orders or shifts in the federal EEOC’s agenda.

Key Takeaways for Employers on Gender Identity Discrimination

• Unless the Bostock decision is reversed, 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.
• Employers need to continue to take measures to ensure that these rights are protected.

Conclusion

Legal experts remind business leaders that it is still illegal for most employers to discriminate against employees because of their transgender status. The Trump Administration’s campaign against transgender individuals does not override federal and state laws prohibiting 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.

Frequently Asked Questions

Q: Can the EEOC’s new agenda change federal law on gender identity discrimination?
A: No, the EEOC’s agenda cannot change a law passed by Congress or the Supreme Court’s interpretation of that law.

Q: Can an executive order change Title VII law on gender identity discrimination?
A: No, an executive order cannot change Title VII law or override the Supreme Court’s Bostock opinion.

Q: What if an employee is not satisfied with the EEOC’s handling of their gender identity discrimination claim?
A: The employee may still pursue their claim in Federal Court on their own, either pro se or through their own private attorney.