Changes to EEOC: Where does this leave employment protections?
Trump’s executive order on gender identity helps protect women, but protections for LGB people still lack clarity
By: Elspeth Cypher, WoLF Board Secretary and retired Massachusetts Supreme Court Justice
On January 20, 2025 President Trump issued an Executive Order (EO) number 14168, entitled DEFENDING WOMEN FROM GENDER IDEOLOGY EXTREMISM AND RESTORING BIOLOGICAL TRUTH TO THE FEDERAL GOVERNMENT. The order plainly spells out that sex is biological, binary, and does not change. He directed all agencies to implement this EO immediately and instructed his staff to present to him within thirty days a proposed bill to codify the definitions in the order.
The EEOC was created by Congress over 60 years ago as a bipartisan, independent agency to oversee implementation of the Civil Rights Act of 1964. The EEOC has five commissioners, appointed by the President and confirmed by the Senate for 5 year terms.
On January 27, 2025 President Trump fired two of the three Democratic members of the EEOC, Commissioners Jocelyn Samuels and Charlotte Burrows. This leaves the EEOC without a quorum and unable to conduct certain business. Andrea Lucas, one of the dissenting members of the EEOC Commission regarding the April 2024 changes put forth by the Biden Administration, will now be the Acting Chair. Lukas announced several priorities for the EEOC’s compliance, investigations, and litigation—one being to “defend the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work.” Trump has appointed Andrew Rogers, chief counsel to the Equal Employment Opportunity Commission.
Lucas cannot act unilaterally, however. No more than three of the Commissioners members may belong to the same political party, and the Commission is presently without a quorum to conduct business. Democrats Samuels and Burrows appear likely to bring suit against the President for illegal termination. If they do, the litigation will test a 1935 Supreme Court case, Humphrey’s Executor v. United States, that upheld “Congress’s power to create independent boards and commissions whose members the President could not remove at will….”
The EO’s clear statement on sex should put to rest the disingenuous answers provided by people trying to avoid answering “adult human female” when asked “What is a woman?” The EO goes a long way in protecting women as a sex category.
Although the EO addresses Title VII, its immediate effect will be felt most in Title IX cases involving women’s and girls' sports and separate bathroom and locker room facilities. The mandate of the order does not create clear sailing in Title VII, however, because in 2020 the Justice. Gorsuch, writing for the majority in Bostock v. Clayton County held that discrimination “because of sex” included sexual orientation and gender identity. Justice Gorsuch tried to limit his expanded definition of sex to Title VII, but previous administrations carried it over to Title IX, even though the statutes are worded differently.
Including sexual orientation and gender identity as part of the definition of sex has caused numerous problems and legal issues. Not only does it inappropriately pair sexual orientation with gender identity, it also creates an inherent conflict of rights between sex and gender identity. Perhaps the Supreme Court will take the opportunity in the Skrmetti opinion to “clarify” what it meant to say in Bostock.
Nevertheless, EEOC Acting Chair Andrea Lucas appears ready to implement the President’s EO. But, the EEOC cannot walk away from Bostock v. Clayton County, and as of February 5, 2025, the following language remained on the EEOC website:
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, childbirth, or related conditions, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information”
“Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex, including the person's sexual orientation, gender identity, or pregnancy.”
“Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.”
WoLF stands with the LGB and supports legislation that would place sexual orientation within the Civil Rights Act of 1964.
The Executive Order is well crafted and delivers a bracing and welcome return to reality. Implementation in Title VII is another matter. We eagerly await further developments in this area, as the chaos imposed on the business community from the 2024 changes and the Bostock decision continue to create confusion.
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For over ten years, WoLF has consistently pushed back against gender identity ideology and fought for the preservation of sex-based rights for women and girls. We would not have gotten this far without our generous supporters!
