An Overview of Executive Order 14168 Recognizing Only Two Sexes
Among the multitude of executive orders issued by President Trump in his first few days of office, he issued Executive Order 14168 “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the EO). This EO states that the U.S. Federal Government recognizes only two sexes – male and female – and aims to remove what it describes as “gender ideology extremism.”
Purpose of the Executive Order
This EO reverses President Biden’s position on diversity, equity, and inclusion and transgender rights. Its stated purpose is to keep women safe from men who “self-identify as women and gain access to single sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.”
“Gender ideology” is described in the EO as a “false claim” that “replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity.”
Direction Under the Executive Order
Federal agencies are directed to use the term “sex” and not “gender” and take actions to comply with the EO’s two-sex only policy. Federal agencies are directed to define “sex” as a binary biological classification determined at conception, explicitly rejecting “gender identity” in federal law and policy interpretations.
Sex-segregated spaces such as restrooms, locker rooms, etc. are to be based on biological sex rather than gender identity in federal facilities and the Attorney General is directed to issue guidance on single sex spaces in workplaces more broadly.
Federal systems and identification documents (including passports) are to recognize only “male” and “female” designations based on sex assigned at birth.
Direction from the Equal Opportunity Commission
Andrea Lucas, the acting chair of the EEOC issued a statement on January 28, 2025 outlining her views supporting the EO and identifying actions she has taken to support her priority “to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.” Actions taken identified in her statement to do so include the following:
- Removing the agency’s “pronoun app,” a feature in employees’ Microsoft 365 profiles allowing employees to identify preferred pronouns.
- Ending the use of the “x” gender marker during the intake process for filing a discrimination charge.
- Directing the modification of discrimination charge and related forms to remove “Mx.” from the list of available prefix options.
- Starting a review of the EEOC’s Know Your Rights poster content, which is required to be displayed in the workplace by all employers.
- Removing materials promoting gender ideology on the EEOC’s internal and external websites and documents.
Additional action is ongoing by the EEOC and employers should keep a close eye on further direction and changes.
Impact on Private Employers
This EO applies to federal agencies and their employees although it is likely that further agency action may be applied to federal contractors and entities receiving federal funding.
It does not impact state laws on this topic and employers need to be aware of state specific laws regarding this matter. More than half of the states have laws prohibiting discrimination and harassment based on sexual orientation and/or gender identity or LGBTQ status. These laws remain in effect and employers still need to comply with them. Additionally, several states require employers to provide restroom access to employees based on gender identity.
In addition, the U.S. Supreme Court’s decision in Bostock v. Clayton County held that the protection against sex discrimination and sexual harassment extends to discrimination and harassment on the basis of sexual orientation and gender identity. This remains the law unless and until the Court revisits this decision.
That said, employers may want to consider carefully reviewing their policies and practices regarding restroom access, gender identity harassment, gender transitions, etc. to ensure compliance with all applicable laws.
Source(s): GovDocs, received on February 5, 2025