The Equal Employment Opportunity Commission (EEOC) has instructed its employees and investigators to not investigate transgender and gender identity discrimination charges that are filed with the agency. The EEOC made this announcement based on the January 20, 2025 executive order by Donald Trump, which stated that the federal government would only recognize two unchangeable sexes, male and female. However, in the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Justice Neil Gorsuch (a Trump appointee) found that Title VII of the Civil Rights Act prohibits workplace discrimination on the basis of gender identity or sexual orientation. Title VII is one of the federal laws that the EEOC is responsible for enforcing, and employees are required by that same law to file first with the EEOC before they can file in court.
Under the EEOC’s new approach, employees can still file charges for gender identity or sexual orientation discrimination. But the EEOC will assign those charges the lowest category of importance, essentially meaning that the EEOC will not investigate the charges. The employee can still request a notice of right to sue and move forward with their cases in court. The EEOC normally gets at least 3,000 charges a year based on gender identity or sexual orientation.
What Does that Mean for Employees with Gender Identity and Sexual Orientation Claims?
For employees who already have an attorney, the change won’t mean much. The EEOC rarely does much of an investigation anyway, and as a plaintiff’s employment lawyer, I’m just trying to get through the charge process so I can file my lawsuit. I do wonder whether the EEOC will refuse to require the company to provide a Position Statement for these charges, even if the employee has an attorney representing them. The Position Statement is what the company must normally provide to counter the allegations made by the employee in the charge. At the bare minimum, it pins the company down on what their factual and legal arguments are, which can be used against them in the lawsuit. Frankly, obtaining the Position Statement is about the only useful thing that the EEOC does–and often the EEOC can’t even manage that task.
The bigger impact will be on those employees who do not have an attorney already. Their charges for gender identity or sexual orientation discrimination will float along in limbo for months or years before the EEOC dismisses the charge anyway. This is why I recommend that employees talk to an employment lawyer before diving into the EEOC process unassisted. If you can’t find a lawyer to file the charge for you, then likely you don’t have a case worth pursuing. And if you can, then you have some assistance in pushing the EEOC to do the very basics of its job.
For pending lawsuits, the EEOC has already moved to drop the active lawsuits it has filed on behalf of employees with gender identity or sexual orientation claims. The EEOC has the right to bring a lawsuit on the employee’s behalf, although it happens incredibly rarely. For example, in 2023, the EEOC filed 143 lawsuits in 2022 out of 80,000 charges filed. [Read more: How Many EEOC Lawsuits Were Filed in 2023?] But in February 2025, the EEOC filed motions to drop six pending lawsuits that the EEOC has filed on behalf of employees who suffered gender identity or sexual orientation discrimination or harassment.
Trump’s Order Does Not Change Title VII of the Civil Rights Act
The most important takeaway is that Trump’s executive order does not change the underlying law. Title VII of the Civil Rights Act, as interpreted by the U.S. Supreme Court in the Bostock case, still protects employees who face discrimination or harassment based on gender identity or sexual orientation. Congress could, if it wanted, file legislation to repeal that part of Title VII, but it seems unlikely to do so.
Plaintiff’s lawyers like me will still bring lawsuits on the basis of gender identity and sexual orientation, and those cases will still be heard by a jury. Nothing in the order changes that. All President Trump has done is told one of the least useful and least impressive federal agencies in government not to investigate one type of claim.
Employees who have experienced harassment or discrimination on the basis of gender identity and sexual orientation should still talk with an employment lawyer to figure out their legal rights and options for pursuing legal claims. Title VII continues to provide the same protections in the workplace, and you need to act promptly in protecting those legal rights.
You can reach out to our office at 864-233-4351 or via our Contact Us page.
