Sexual Harassment Claims Post-Bostock Under the Trump Administration
In Bostock v. Clayton County, 590 U.S. 644 (2020), the Supreme Court held that terminating an employee simply because they are homosexual or transgender violates Title VII’s prohibition against sex-based discrimination. Bostock has generally been interpreted as expanding Title VII’s definition of “sex” to include gender identity, meaning it would be unlawful for an employer to take any adverse employment action against or harass an individual on the basis of the individual’s gender identity. What constitutes sexual harassment based on gender identity, however, remains unclear.
On April 29, 2024, the EEOC issued guidance on employment harassment claims (“Enforcement Guidance on Harassment in the Workplace”). In light of the Bostock opinion, the guidance clarified that the EEOC’s position was that denying an employee access to sex-segregated facilities (i.e., bathrooms) consistent with the employee’s gender identity and/or intentionally misgendering a transgender employee would constitute unlawful sexual harassment in violation of Title VII.
As we begin the second year of President Trump’s second term in office, traditional federal harassment and discrimination employment claims have taken a backseat as the focus has shifted toward Diversity, Equity, and Inclusion (DEI) programs and gender-identity policies in the workplace. The Administration has signaled its intention to eradicate policies and programs focused on DEI and gender identity, not only in the Federal government but in the private sector as well. Naturally, this shift has impacted the status of sexual harassment and sex discrimination claims based on gender identity moving forward.
On January 20, 2025, President Trump signed Executive Order 14168 (“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”). Key takeaways:
Clarifies that the Administration recognizes only two sexes (male and female), which are dependent upon “biological classification” and do “not include the concept of ‘gender identity’”;
Instructs all Federal employees enforcing sex-based rights and accommodations to (i) treat men and women as “biologically distinct sexes” and (ii) when enforcing sex-based distinctions, to only use the term “sex” (as defined by the Administration) and cease references to “gender” in Federal policies and documents;
Clarifies the current Administration’s belief that the Biden Administration’s interpretation of Bostock as requiring “gender identity-based access to single-sex spaces . . . is legally untenable and has harmed women,”;
Instructs the Attorney General to issue guidance and assist agencies in protecting “the right to single-sex spaces in workplaces” and to “prioritize investigations and litigations to enforce those rights and freedoms”; and
Instructs agencies to rescind, in whole or part, all guidance documents that are inconsistent with the requirements of EO 14168, including the Equal Employment Opportunity Commission’s (EEOC) “Enforcement Guidance on Harassment in the Workplace” issued April 29, 2024.
Beginning in January 2025, the EEOC lacked a quorum of Commissioners (a minimum of three Commissioners) following the termination of two Democratic Commissioners. A quorum was finally restored following the Senate’s October 2025 confirmation of Brittany Panuccio, thereby allowing the EEOC to take agency action again. On January 22, 2026, with a quorum restored and a Republican majority, the EEOC voted along party lines to finally rescind the EEOC’s 2024 “Enforcement Guidance on Harassment in the Workplace,” as directed in Executive Order 14168.
The 2024 harassment guidance covered all types of harassment (including harassment based on age, race, sex, religion, disability, national origin, etc.) and was not singularly focused on gender- and/or sex-based harassment. Despite the broad focus of the harassment guidance, the EEOC voted to rescind the 2024 harassment guidance in whole, rather than rescinding specific portions of the guidance that related to gender identity.
Federal discrimination and harassment law is determined by Congress and the federal courts. Because the 2024 harassment guidance was not authoritative law, its rescission does not have a substantive impact on harassment law. Bostock is still good law (at least for now). However, the 2024 harassment guidance did provide employers with helpful information regarding how the EEOC—the Federal agency tasked with enforcing Federal discrimination and harassment law—believed harassment claims should be handled, including those that specifically relate to potential gender-identity-based sexual harassment claims
Despite the EEOC Commissioners clarifying that this rescission does not impact the EEOC’s priority on eradicating unlawful harassment, the wholesale rescission of the 2024 harassment guidance—combined with the message and intent of Executive Order 14168—leaves employers and employees with a lot of questions regarding the Trump Administration’s interpretation of federal harassment laws, especially those that would apply to gender-identity-based sexual harassment claims in the wake of the Bostock decision.
