On January 20, 2025, the Executive Order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the EO) was issued. The EO mandates that the federal government will now recognize only two sexes, male and female, and reject the concept of gender identity. Key provisions of the EO include: 

• Defining sex as an immutable biological classification; 

• Requiring federal policies and identification documents to reflect biological sex; and 

• Prioritizing investigations to enforce sex-based rights. 

While the EO is expressly limited to federal agencies and contractors, it has nevertheless caused confusion — and in some cases, fear — among private sector employees as it reverses hard-won protections associated with gender and gender identity. It also places employers in a murky grey area when it comes to compliance, as they try to keep up with rapidly changing federal laws and conflicting state protections. At this early stage, only time will tell how these new EO mandates will be administered and enforced.  

To prepare for what the future may hold, employers should anticipate several key developments in the following areas: 

• Increased Federal Oversight: 
  • Employers can expect to see more rigorous enforcement of federal policies that align with the EO’s definition of sex. This will likely include federal agencies prioritizing investigations into compliance with sex-based rights. 
• Policy Updates and Guidance: 
  • Federal agencies rushing to comply with the new EO have removed nearly all gender-related resources from their websites. As such, it is anticipated that agencies, such as the EEOC, will begin issuing new guidelines and updates to existing policies to reflect the EO’s mandates.  
• Litigation and Legal Challenges: 
  • All employers, particularly those with large employee populations, should be prepared for potential legal challenges and litigation related to the EO. This could include disputes over single-sex spaces and other sex-based rights. 
• State Law Conflicts: 
  • Like California, many states recognize sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, and gender expression as protected classifications and have enacted robust anti-discrimination and harassment laws. It is therefore crucial to navigate conflicts associated with gender carefully to ensure compliance with both federal and state regulations. Legal counsel should be consulted prior to implementing any significant changes to existing company policies or practices.  
• Employee Relations: 
  • Employers should anticipate potential concerns and questions from employees, particularly those in the LGBTQI+ community. Clear communication and support will be essential to maintaining a positive workplace environment. 

There is no denying that the EO presents significant challenges for employers. However, those who stay proactive, remain well-informed, and consult with legal counsel will be well-positioned to navigate and manage this rapidly evolving regulatory landscape effectively.