On December 13, 2024, we wrote on several policies implemented by the Biden administration that were likely to be rolled back, qualified, or reversed entirely once Donald Trump officially took office. On January 20, 2025, the day of President Trump’s inauguration, the Trump Administration began doing just that, beginning with, among other things, an executive order that directly rebuffs guidance recently issued by the Equal Employment Opportunity Commission regarding harassment and misgendering in the workplace.

EEOC’s April 2024 guidance on workplace harassment and misgendering

Under the Biden Administration, the EEOC advanced employee protections through numerous employee-friendly initiatives. Among these was the agency’s April 2024 release of updated guidance on workplace harassment, which broadened the definition to encompass various forms of discrimination and mistreatment, particularly as they relate to gender identity.

The updated guidance explicitly recognized that workplace harassment can include misgendering employees, which involves repeatedly and intentionally referring to an individual by pronouns or a name that does not align with their gender identity. Additionally, the guidance addressed barriers to restroom access, emphasizing that preventing an employee from using the restroom that corresponds with their identified gender constitutes a form of workplace harassment.

With these updates, the EEOC reinforced protections for employees on the basis of gender identity, making it clear the intention to attack harassing and discriminatory conduct targeting an employee’s identified sex or gender.

President Trump’s executive order recognizing two sexes

In a sweeping reversal of the EEOC’s recent guidance, President Trump took decisive action in his first week in office to redefine the federal government’s stance on gender recognition. During his inaugural address on January 20, 2025, for instance, President Trump stated, “As of today, it will henceforth be the official policy of the United States government that there are only two genders, male and female.” Later that day, President Trump signed an executive order solidifying this position, stating that sex is biologically determined, consists only of male and female classifications, and cannot be changed.

The executive order explicitly asserts, “[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality,” further clarifying that, “’[s]ex’ is not a synonym for and does not include the concept of ‘gender identity.’” Moreover, as written, the order appears to apply to extend to the interpretation and enforcement of federal laws, including Title VII of the Civil Rights Act of 1964. This move places the order in direct conflict with the EEOC’s April 2024 guidance.

What does this all mean?

The clash between the Biden-era EEOC guidance and President Trump’s executive order raises significant legal questions regarding how federal agencies, courts, and employers will navigate competing interpretations of sex-based protections in the workplace, particularly given that laws such as Title VII explicitly protect against discrimination on the basis of gender identity, transgender status, and sexual orientation. It is possible the EEOC under President Trump may attempt to roll back enforcement of rights for transgender individuals under Title VII or change its tune entirely and take the position that allowing individuals to, for example, access bathrooms that conform to their gender identity is a discriminatory employment practice in and of itself.

We do not expect this to be the end of the story, however, as President Trump is likely to take further action on this issue in the near term. The long-term implications of this order will largely depend on judicial rulings and potential legislative actions in the coming months. However, unless and until Congress amends laws, such as Title VII, private employers remain governed by the law, not the executive order. This will likely culminate in litigation, but in the meantime, private employers should continue to govern themselves according to and consistent with existing law and precedential case law interpreting it (while still being mindful of the shift in approach signaled by the Trump administration).