On Monday, January 20, 2025, President Donald Trump issued an Executive Order entitled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth To The Federal Government” (the “Order”).  The Order declares that the United States will only recognize two sexes, male and female, and states that these sexes are binary, biological, and “not changeable.” 

The Order provides that, under the direction of President Trump, the Executive Branch will “enforce all sex-protective laws to promote this reality.”  As part of this enforcement, federal agencies are required to remove, and cease issuing, any statements, policies, regulations, and other messages that “promote or otherwise inculcate gender ideology,” which the Order defines as “the idea that there is a vast spectrum of genders that are disconnected from one’s sex.”  Federal agencies are also required to take all necessary steps permitted by law to “end Federal funding of gender ideology.”  Moreover, pursuant to the Order, all federal agencies and employees must use the term “sex” rather than “gender” when acting in an official capacity.

The Order also requires all government-issued identification documents, such as passports, visas, and Global Entry cards to “accurately reflect the holder’s sex.”  This marks a reversal of the Biden Administration’s policy which, beginning in 2022, allowed U.S. citizens to select the gender-neutral “X” on their passports.  In addition, the Order mandates “privacy in intimate spaces” to ensure that single-sex spaces, such as federal prisons and rape shelters, are designated by sex and not by gender identity.

Limiting the Scope of Bostock

Notably, the Order explicitly states the Trump Administration’s intent to limit the scope of the U.S. Supreme Court’s 2020 ruling in Bostock v. Clay County.  In Bostock, the Supreme Court held that Title VII of the Civil Rights Act of 1964’s prohibition on discrimination “on the basis of sex” includes discrimination on the basis of sexual orientation and gender identity.  According to the Order, the Biden Administration interpreted Bostock to “require[] gender identity-based access to single-sex spaces.”  The Order directs the Attorney General to immediately issue guidance to federal agencies to “correct [this] misapplication” of Bostock to “sex-based distinctions in agency activities.”  The Senate Judiciary Committee is scheduled to vote on President Trump’s Attorney General nominee, Pam Bondi, on January 29.

What The Executive Order Means for Private Employers

Importantly, the Order directs the Attorney General to issue guidance to “ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.”  Pursuant to that guidance, the Order instructs the Attorney General, the Secretary of Labor, and the General Counsel and Chair of the Equal Employment Opportunity Commission (“EEOC”), as well as any other agency heads with enforcement power, to prioritize investigations and litigation to enforce the binary sex mandate.  While the EEOC is generally expected to slow the pace of litigation and shift away from enforcement through investigations against employers suspected of violating discrimination laws under newly appointed Acting Chair Andrea R. Lucas, employers in the coming months and years may see more litigation and enforcement through investigations against employers who are not in compliance with the Executive Order’s mandate. 

Lastly, the Order states that all federal agencies must promptly rescind any guidance inconsistent with the Order and/or with the Attorney General’s forthcoming guidance.  Specifically, the Order also calls for the rescission of the EEOC’s April 2024 guidance, entitled “Enforcement Guidance on Harassment in the Workplace.” 

As Proskauer previously covered, that guidance provided broad protection for LGBTQ+ workers against harassing conduct based on sexual orientation or gender identity.  Among other things, the guidance also emphasized that sex-based harassment under Title VII encompasses harassment based on pregnancy, childbirth, or related medical conditions (including the decision to have, or not have, an abortion).  With this guidance no longer in effect, employers should review any modifications to policies or practices implemented in response to the guidance against the other requirements of the Executive Order.

Takeaways

This Order was just one of dozens of executive actions taken by President Trump within hours of his inauguration.  We expect there will be more updates in the coming days and weeks, and we will continue to monitor and report on these updates.

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Photo of Keisha-Ann Gray Keisha-Ann Gray

Keisha-Ann G. Gray is a distinguished litigator and trial lawyer who has secured significant victories in federal and state courts (jury trial and otherwise) for organizations facing “bet the company”, high-reaching, reputational risk claims. An award-winning partner in Proskauer’s renowned Labor & Employment…

Keisha-Ann G. Gray is a distinguished litigator and trial lawyer who has secured significant victories in federal and state courts (jury trial and otherwise) for organizations facing “bet the company”, high-reaching, reputational risk claims. An award-winning partner in Proskauer’s renowned Labor & Employment department and co-chair of the Firm’s Workplace Investigations practice group, she advises clients on high-stakes employment litigation and complex investigations matters. As important social change movements like Black Lives Matter, #MeToo and LGBTQ Pride continue to shape society and businesses, Keisha-Ann is the go-to advisor when addressing issues related to discrimination, harassment and/or lack of diversity.

With 20+ years in practice, Keisha-Ann frequently speaks and trains on employment matters such as litigation and trial practice, conducting effective investigations (the trauma-based approach), Diversity, Equity & Inclusion, and Anti-Discrimination/Anti-Harassment. Her “real talk” style of delivery provides clients with actionable and practical best practice solutions to today’s most challenging workplace issues.

Prior to joining Proskauer, Keisha-Ann served as an Assistant United States Attorney in the Eastern District of New York and federal law clerk in the U.S. District Court for the District of Puerto Rico.  The breadth of Keisha-Ann’s experience and background in federal government, coupled with her tenure in private practice as a Big Law partner and employment litigator, gives her the unique ability to meaningfully connect with diverse groups of people. This skill enables her to advocate effectively and successfully (in and out of the courtroom) for her clients. As a result, Keisha-Ann is also frequently called upon to conduct high-profile internal investigations. Because of her unique and varied skill set, clients routinely engage Keisha-Ann to handle their most sensitive matters which, due to her involvement, often successfully result in non-public, confidential resolutions – precisely the mandate required by her clients.

Keisha-Ann enjoys giving back to the community and profession by serving as a member of the Mayor’s Advisory Committee on the Judiciary. She also serves on the Board of the Attorney Grievance Committee for the NY Supreme Court Appellate Division, 1st Department, the Board of the Federal Bar Council, and the Board of the Eastern District Association. In addition, Keisha-Ann co-Chairs the Federal Bar Council’s Employment Litigation Committee, and mentors junior attorneys.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice.

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice. Steven’s national practice focuses on defending companies in federal and state courts and arbitration against claims of: discrimination, retaliation and harassment, including claims brought by high-level executives; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations (including class, collective and PAGA actions).

Illustrating his versatility, Steven has successfully handled bench and jury trials in multiple jurisdictions (e.g., Illinois, California, Florida and Texas); defended one of the largest Illinois-only class actions in the history of the federal courts in Chicago; and prevailed following his oral arguments before the Seventh Circuit and state appellate courts. Steven brings his litigation experience to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He was also named as One of the Top 10 Impactful Labor & Employment Lawyers in Illinois for 2023 by Business Today. He is a Fellow of the College of Labor and Employment Lawyers. Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Chambers also reports that “He is someone who can navigate the twists and turns of litigation without difficulty. Steven is great with brief-writing, crafting arguments, and making sure the client is always happy.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC, and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

Photo of Evandro Gigante Evandro Gigante

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the…

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the Employment Litigation group, and co-head of the Counseling, Training & Pay Equity group, he represents clients on a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. In addition, Evandro handles restrictive covenant matters, including non-compete, non-solicitation and trade secret disputes. Evandro also counsels employers through the most sensitive employment issues, including matters involving employer diversity, equity and inclusion initiatives.

With a focus on discrimination and harassment claims, Evandro has extensive experience defending clients before federal and state courts. He tries cases before juries and arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions. Evandro often draws on his extensive litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful anti-discrimination and harassment training, as well as robust employment policies.

Working in a wide range of industries, Evandro has experience representing clients in professional services, including law firms, financial services, including private equity and hedge funds, higher education, sports, media, retail, and others. Evandro also advises charter schools and other not-for-profit organizations on labor and employment matters on a pro bono basis.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Delia Karamouzis

Delia Karamouzis is a law clerk in the Labor Department and is a member of the Employee Litigation & Counseling Groups.