Understanding Gender Identity Discrimination in the Workplace: A Legal Perspective
As discussions surrounding gender identity in the workplace become increasingly prominent, business leaders must navigate their legal responsibilities carefully. Recent developments in federal policy may lead some employers to question the legality of certain practices regarding transgender employees. However, legal experts affirm that discrimination against individuals based on gender identity remains illegal under federal and state laws.
The Legal Framework: Title VII
The U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County established a critical understanding of Title VII of the Civil Rights Act of 1964. This law protects employees from discrimination based on sex, which has been interpreted to include gender identity. According to the Court’s ruling, any discriminatory action against a transgender person correlates with discrimination based on sex.
“Bostock is still good law,” said Allison Sues, Senior Employment Law Counsel at HR Source. This underscores the point that the protections offered by Title VII are firmly established and have not been altered or rescinded.
The Impact of Executive Orders
In January 2025, former President Trump signed Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This order mandates that federal agencies enforce policies distinguishing between biological sexes. However, experts assert that such executive orders do not have the authority to modify existing laws like Title VII or the interpretations set forth by the Supreme Court.
Christopher Ward, a labor and employment law partner at Foley & Lardner, stated, “A presidential administration cannot on its own rewrite the equal employment opportunity statutory scheme woven through the federal fabric by laws like Title VII.” Therefore, the legal standards established by the Bostock decision remain in effect, reinforcing that discrimination based on gender identity remains illegal.
EEOC’s Changing Landscape
The U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal discrimination laws, has also undergone changes. In January 2025, new Acting Chair Andrea Lucas released a statement indicating a shift in focus toward protecting biological and binary definitions of sex. This included the removal of certain gender-related policies and materials from the agency’s operations.
Despite these changes, it is critical for employers to recognize that the EEOC cannot change the laws established by Congress or Supreme Court rulings. Sues explained, “The EEOC’s agenda cannot change a law passed by Congress or the Supreme Court’s interpretation of that law.”
Legal Protections at the State Level
Employers must also consider that many states and local jurisdictions have enacted their own laws prohibiting workplace discrimination based on gender identity. As of now, 23 states and Washington, D.C., have explicit laws against such discrimination, while eight additional states interpret their sex discrimination laws to include gender identity.
These state laws can extend protections even to smaller employers, and they provide alternative avenues for employees to challenge discriminatory practices without relying solely on the EEOC. Sues pointed out that employees could initiate claims through state agencies or courts if applicable laws exist.
Key Insights for Employers
As the landscape surrounding gender identity discrimination continues to evolve, employers should remain vigilant regarding their responsibilities. It is essential to understand that protections against discrimination on the basis of gender identity remain intact under both federal and many state laws. According to Brittany L. Hynes, an employment attorney at Tripp Scott, “charges of discrimination based on gender identity will continue to be filed.”
To ensure compliance, employers must take proactive steps to protect the rights of transgender and nonbinary individuals in their workplaces, regardless of changes in federal policy or agency priorities. It remains legal for employees to pursue claims in court, independently of any shifts in the EEOC’s enforcement practices.
Note: This article is not intended as legal advice. Employers and employees should consult qualified attorneys with questions regarding gender identity discrimination matters.
