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Employment Law Update: Gender Identity

February 18 2025

By: Susie Cirilli

The EEOC has moved to dismiss (not prosecute) a few cases that are based in discrimination based on gender-identity. Apparently, the basis for these attempted dismissals is Executive Order No. 14168: Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. As of the date of this blog, the motions were filed for dismissal. There has been no official dismissal.

With that being said, it is a good idea for employers to have a handle of the legal employment landscape as it relates to Gender Identity as of the date of this blog.

It is crucial for employers to understand that (1) Title VII still identifies employment discrimination based on gender identity and sexual orientation as unlawful, (2) the Supreme Court case that confirmed gender identity and sexual orientation as protected classes has not been overturned, and (3) many state statutes include sexual orientation and gender identity as a protected class. We’ll discuss in more detail below.

Let’s first take a look at the Executive Order:

EXECUTIVE ORDER

The Executive Order (“EO”) lays out definitions for the following words: “sex,” “women”, “men,” “female,” “male,” “gender ideology,” and “gender identity.” The EO includes directives for federal employees, and signals to potential ramifications for private employers/employees.

Gender-Identity Definition. The EO defines Gender Identity as “…a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.”

Agency Forms. Section 3(e) requires that all “agencies…removal all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages.” Even more, the EO directs that all agency forms shall no longer request gender identity.

Gender Identity- Based Access. Section 3(f) of the EO asserts that the prior administration misinterpreted the U.S. Supreme Court’s decision  in Bostock v. Clayton County, 590 U.S. 644 (2020) to mean that the law requires gender identity-based access to traditionally single-sex spaces. (NOTE: As discussed below, Bostock confirmed that gender identity and sexual orientation are protected under Title VII). The EO directs the Attorney General to “immediately issue guidance to agencies to correct the misapplication of the Bostock  to sex-based distinctions in agency activities.”

Questions:

  • Does this EO apply to private employers? The EO seems to apply to federal employees. With that being said, Section 3(f) directs the AG to correct the “misapplication: in “agency activities.” It is unclear whether this means the EEOC, which is the agency that hears private employer matters.
  • Is Bostock Still Good Law? Yes. (But as discussed below, we anticipate litigation on this case.)

We will wait to see whether the EEOC is able to actually drop the cases for the reasons cited (the EO).

FEDERAL LAW

Below we discuss Title VII  and the Supreme Court’s Bostock case that held Title VII protects gender identity.

FEDERAL STATUTE

Title VII makes it unlawful for an employer to discriminate against an employee on the basis of protected classes. It is an unlawful employment practice to:

…fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

SUPREME COURT CASE

In 2020, the issue of whether “on the basis of sex” in Title VII included sexual orientation or gender identity went to the United States Supreme Court in Bostock v. Clayton County. The Supreme Court held in that case that sexual orientation and gender identity are included in the definition of “sex” under Title VII. Justice Gorsuch wrote the opinion saying:

The statute’s message for our case 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 the individual based on sex.

EEOC DISMISSALS

After the Bostock decision, the Biden Administration (by way of the EEOC) interpreted this case to mean that sexual orientation and gender-identity (as opposed to transgender status) were protected. Now, it seems that the new administration is looking for clarification on whether it stands for (in addition to sexual orientation), gender identity, or simply transgender status.

The cases chosen to be dismissed, involve employees who are not transgender. The Plaintiffs in these cases were suing based on sexual orientation, gender identity and failure to adhere to gender stereotypes. The Plaintiff in the Alabama case was: (1) assigned the sex of male at birth, (2) identifies as non-binary male, (3) gay, and (4) personal appearance does not always conform to male gender stereotypes. We can expect this precise issue of whether Bostock includes gender-identity to be decided in this case

STATE AND LOCAL LAW

While there are many changing elements to the employment landscape these days, it is important for employers to note that many state employment laws protect gender identity. Even more, many city human relations laws also protect gender identity. Because of the uncertainty with the EEOC, employers can expect more state law claims of discrimination, as opposed to federal claims which must first be brought to the EEOC.

BOTTOM LINE

We can anticipate updated guidance from the EEOC as it relates to gender identity. We also can expect litigation that will tease out the specific issues mentioned in the Executive Orders relating to using gender-identity for access to “single-sex spaces.”

For now, it is important to remember that as of the date of this blog, the Supreme Court’s Bostock has been neither over-turned  nor distinguished. Lastly, employers must remember that state and local laws may apply that protect gender identity.