After President Donald Trump’s January 20th inauguration, a series of executive orders were signed, including one defining the government’s recognition of only two genders. Despite this, legal experts anticipate continued protection of transgender workers under anti-discrimination laws, yet they also foresee fewer actions from the U.S. Equal Employment Opportunity Commission (EEOC) concerning transgender rights.
While the executive order explicitly limits gender recognition, experts maintain established protections for transgender employees under Title VII of the Civil Rights Act of 1964. However, the order, combined with the evolving composition of the EEOC, is likely to result in reduced enforcement actions by the agency on behalf of transgender workers.
“Given the lack of an EEOC quorum, I don’t think we’re going to see short term a groundswell of EEOC systemic litigation targeting transgender status,” stated Christopher DeGroff, an employment and labor partner at Seyfarth Shaw LLP, based in Chicago.
Following the order, EEOC Acting Chair Andrea Lucas announced the agency was revising gender ideology information on its website and related guidance documents. Legal challenges from individuals and advocacy groups are anticipated as the order undergoes full implementation.
Caius Willingham, a senior policy analyst for Advocates for Trans Equality, expressed concern about the premature rollback of protections for transgender employees, emphasizing the potential danger before legal changes become enforceable. His group expects legal challenges to the executive order.
The changing composition of the EEOC raises questions on how the agency will protect the rights of transgender workers. President Trump dismissed Democratic EEOC commissioners Charlotte Burrows and Jocelyn Samuels on January 29. These Biden-appointed commissioners were to remain in their positions until 2028 and 2026, respectively. Their removal left the EEOC without the three commissioners required for a quorum, which is necessary for the agency to implement executive orders within its purview, according to Willingham.
A vote by the commissioners is required for critical actions, including major enforcement actions, releasing or rescinding guidance, and engaging in notice, comment, and rulemaking, Mr. Willingham noted.
President Trump appointed Andrew Rogers as the EEOC’s acting general counsel. Rogers previously worked with Acting Chair Lucas. This appointment is seen by DeGroff as a step towards “creating more solidarity within the agency to follow the president’s marching orders.”
Kelly Thoerig, Richmond, Virginia-based EPLI and wage and hour product coverage leader at Marsh LLC, indicated changes within the EEOC affect the types of claims pursued and highlight the need for adequate employment practices liability insurance. Another expert Sheila M. Abron, a Columbia, South Carolina-based employment law partner at Fisher Phillips LLP, emphasizes the importance of adhering to Title VII, even amid ongoing changes at the agency.
Ms. Abron also highlighted compliance with state laws that protect employees against discrimination, with several states acknowledging nonbinary as a third gender. The text of the executive order, particularly regarding the protection of “biological women,” may initiate amendments to Title VII. Sam M. Schwartz-Fenwick, a labor and employment partner at Seyfarth Shaw in Chicago, explained that the order’s text “raises the specter of the government targeting employers with inclusive bathroom policies for creating hostile work environments for ‘biological women.’”
Schwartz-Fenwick also stated that the executive order’s language directly contradicts the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which safeguards against discrimination based on sexuality or gender identity under Title VII. Despite anticipated efforts by the EEOC and federal courts to narrow the interpretation of Bostock, Willingham asserts that it remains valid law and protects individuals based on their transgender status.
If the federal government follows the order’s directives, “we’re going to see a real shift in legislative priorities in the transgender space with the government. They will really focus on entities that are providing protection to transgender workers instead of companies who aren’t,” Schwartz-Fenwick said. Ms. Abron recommends employees who feel discriminated against should follow internal company reporting policies. She added “Recognizing two genders on an official document doesn’t necessarily mean we’re doing away with discrimination protections, and there’s a lot of case law out there that still provides protection.”
Impact on DEI Initiatives
Experts expect a rise in claims linked to reverse discrimination and legal challenges to diversity, equity, and inclusion (DEI) initiatives. These claims may arise as a result of executive orders aimed at ending these programs. Chris DeGroff suggests the plaintiffs’ bar may be motivated to file more lawsuits as questions arise over the legitimacy of DEI initiatives, further creating uncertainty.
“Uncertainty in the law breeds litigation, and this fog that everyone has been operating under over the last few days and not knowing which way is up will be capitalized on by the plaintiffs bar,” he stated.
Kelly Thoerig advises employers concerned about their risk to evaluate employment practices liability insurance limits and whether they should acquire extra coverage. Sam M. Schwartz-Fenwick suggests companies contemplating changes to their DEI initiatives consult their lawyers. He also added that businesses should analyze their employment practices related to DEI, while taking recent developments into account as these legal issues are still unravelling.
