Federal employees are now starting to see the impact of Trump’s Executive Order directing the agencies to take steps to eliminate civil rights protections of transgender Americans.’
Broadly, the order seeks to falsely designate biological sex as binary, cast equal rights for all Americans irrespective of their sex or gender as impermissible “gender ideology,” and implement federal agency actions based on these new discriminatory definitions.
How Could the Executive Order Be Used to Implement Discrimination?
There are several key areas that this executive order seeks to implement discriminatory practices, which include:
- Directing all federal agencies to enforce laws, regulations, and guidance “governing sex-based rights protections, opportunities, and accommodations to protect men and women as biologically distinct sexes,” and to implement the discriminatory definitions set forth in the order, rather than based on the current letter of the law.
- Requiring that all identification on any government-issued documents including passports, visas, and Global Entry cards identify people based on a person’s “biological sex” as defined in this discriminatory manner.
- Ordering all federal agencies to remove any policies, regulations, forms, or other publications of any kind that refer to sex and gender in any manner other than the discriminatory definition included in the executive order.
- Effectively ordering the Attorney General to ignore Supreme Court precedent in Bostock v. Clayton County (2020), which held that sexual orientation discrimination, including discrimination against transgender Americans, is forbidden under Title VII of the Civil Rights Act of 1964, and provide guidance to federal agencies in accordance with the Executive Order’s discriminatory definition of sex instead.
- Forbidding federal funds from “promoting gender ideology.”
- Creating a host of new rules for “intimate spaces” for “women” as defined by the Executive Order including, but not limited to, housing prisoners according to the executive order’s discriminatory definition of biological sex, as well as prohibiting gender affirming healthcare to prisoners.
Significantly, the order itself contemplates that the terms of the executive order be codified in a bill that would presumably be passed by Congress.
What Is Bostock and What Does This Mean for Federal Employees?
The Civil Rights Act of 1964 (commonly referred to as “Title VII”), prevents discrimination in employment and housing on the basis of race, color, religion, sex, or national origin. In 2020, the U.S. Supreme Court held in the case of Bostock v. Clayton County that an employer cannot fire or discriminate against someone simply for “being homosexual or transgender.” The Court was clear that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
So, for now, discrimination based on your sex – including your sexual orientation, or because you are transgender, is prohibited by law. Discrimination includes any adverse employment action that causes you some harm and may include transfers, demotions, and similar employment actions even if your pay is not impacted. Likewise, discrimination is prohibited in hiring and promotions. Moreover, when you oppose illegal employment discrimination, your employer – including the Federal Government – cannot retaliate against you because of your complaints.
What Can Federal Employees Do?
Given the complexity of these issues and the quickly changing judicial landscape, it is important to consult with an employment lawyer about your rights. Employment discrimination based on sexual orientation or gender identity remains illegal.
Importantly, federal employees, unlike those in the private sector, have an extremely short window within which to complain about discrimination or you can lose your right to sue. You must report the discrimination, harassment, or retaliation to an EEO Counselor within 45 days from the date it occurred. If your complaint is not resolved at that stage, you have to file a “formal” discrimination complaint through your agency’s EEO office. You have just 15 days to file your formal complaint after receiving notice from the EEO Counselor on how to file, so it is critical that you pay close attention to any communications from the agency regarding your complaint. For an overview of the complaint process for federal employees, click here for the Equal Employment Opportunity Commission’s overview of all relevant timelines.
Downstream Impact – Federal Contractors
If you are an employee of a federal contractor in the private sector, you are also protected from discrimination and retaliation. You should complain in writing to your employer. Employees in the private sector are required to file a Charge of Discrimination with the Equal Employment Opportunity Commission within 180 days of the discrimination/retaliation (300 days in some jurisdictions). You may also have protections under state or local anti-discrimination laws. You should consult with an employment lawyer about your rights.
Changing Landscape
An executive order is not passed by Congress and is subject to judicial scrutiny. It can also be invalidated or approved by an act of Congress. We can expect legal challenges to this and other executive orders signed by Trump that seek to expressly invalidate rights otherwise protected by law or the U.S. Constitution. If you are facing discrimination or harassment because of your sexual orientation or gender identity, contact a lawyer and stand up for your rights.
This article is not legal advice. Erika Jacobsen White is an employment and civil rights lawyer with Joseph, Greenwald & Laake, P.A. in Greenbelt, Maryland who practices in D.C., Maryland, and California.
