Executive Order Aims to Protect “Right to Single Sex Spaces”

President Trump issued an executive order on gender ideology and the legal definition of sex that could impact some employers’ workplace policies. 

The Executive Order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” aims to establish “the policy of [the federal government] to recognize two sexes, male and female” and to “enforce all sex-protective laws to promote this reality.” 

• The Order requires agencies to “take appropriate action” to ensure that intimate spaces are designated by sex and not gender identity. 

• The Attorney General will issue guidance “to ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces.” 

What it means: 

• In Bostock v. Clayton County, the Supreme Court affirmed that Title VII extends to discrimination on the basis of gender identity and sexual orientation. 

• The Biden administration took the position that this ruling meant that individuals are entitled to bathroom access – or access to similar traditional “single sex spaces” – consistent with their gender identity. In its decision in Bostock, the Court specifically declined to rule on this issue, one way or another. 

• The Executive Order essentially rescinds the Biden Administration’s interpretation and (attempts) to establish that such access is limited to traditional biological definitions of sex. 

Potential implications for employers: 

• The Executive Order does not in any way change current law, which is still silent on the specific issue of the right to bathroom (or similar space) access on the basis of gender identity. 

• Employers could theoretically be targeted by the Trump administration for enforcement if they permit access based on gender identity. Whether employers would actually be liable for such a policy would be up to the courts.