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Through the use of Executive Orders, the Trump administration has taken swift and significant actions to eradicate the use of 鈥渋llegal鈥� diversity, equity and inclusion (鈥淒EI鈥�) policies and practices by the federal government and to direct that federal agency enforcement authority be used to encourage the private sector to follow suit. Since his inauguration on January 20, 2025, President Trump has issued four executive orders related to the protection of 鈥渟ingle-sex spaces and activities designed for women鈥� and ending the use of 鈥渋llegal DEI and DEIA policies鈥� (the 鈥淎nti-DEI and Gender Orders鈥�): (1) Initial Rescissions of Harmful Executive Orders and Actions;[1] (2) Ending Radical and Wasteful Government DEI Programs and Preferencing;[2] (3) Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government;[3] and (4) Ending Illegal Discrimination and Restoring Merit-Based Opportunity.[4] While the first two orders target, among other things, DEI efforts within the federal government, the other two orders have immediate implications for private companies and organizations. With respect to the private sector specifically, the Anti-DEI and Gender Orders:

• direct the Attorney General to 鈥渆ncourage the private sector to end illegal discrimination and preferences鈥� by preparing a 鈥減roposed strategic enforcement plan,鈥� including identifying potential investigations, litigation and regulatory action;
• establish a federal policy promoting enforcement of 鈥渟ex-protective鈥� laws; and
• direct the termination of 鈥渆quity-related鈥� grants or contracts in the federal government and abolish affirmative action requirements for federal contractors.

New Executive Orders Relating to Sex Identification and DEI Measures

Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government

The Gender Order states that it is now 鈥渢he policy of the United States to recognize two sexes, male and female鈥� and directs the Executive Branch to enforce 鈥渟ex-protective鈥� laws to promote this policy. The Order defines the term 鈥渟ex鈥� as an individual鈥檚 鈥渋mmutable biological classification鈥� and directs the Secretary of Health and Human Services to provide 鈥減ublic clear guidance expanding on the sex-based definitions鈥� in the Order. Looking ahead, the Gender Order directs the Attorney General and federal agencies to: (1) immediately issue guidance effectuating this new federal policy eliminating legal recognition and protections on the basis of transgender, nonbinary and intersex status; and (2) 鈥減rioritize investigations and litigation鈥� to enforce the new policy.

Ending Illegal Discrimination and Restoring Merit-Based Opportunity

On January 20 and 21, 2025, President Trump signed a series of Executive Orders aimed at 鈥渆nforcing civil-rights laws鈥� and 鈥渆nding illegal preferences and discrimination.鈥� Collectively, these Anti-DEI Orders require the termination of all DEI mandates, policies, programs, preferences, and activities in the Federal Government/federal contracting and direct the Attorney General to develop a plan for the use of regulatory investigations and litigation against private sector companies and organizations engaged in 鈥渋llegal discrimination and preferences.鈥�

With respect to federal contractors, the Jan. 21 Order revokes Executive Order 11246, which required equal opportunity and nondiscrimination in government contracting, and directs the Office of Federal Contract Compliance Programs to stop 鈥減romoting diversity.鈥�[5] The Jan. 21 Order requires every government contract or grant award to 鈥渃ertify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,鈥� and gives Federal contractors 90 days to come into compliance.

With respect to the private sector, the Jan. 21 Order directs the Attorney General to submit a report, within 120 days, containing recommendations to 鈥渆ncourage the private sector to end illegal discrimination and preferences, including DEI.鈥� The report must include a list of the 鈥渕ost egregious and discriminatory DEI practitioners in each sector of concern鈥� and a plan to deter DEI programs or preferences, including identifying 鈥渦p to nine potential civil compliance investigations鈥� of 鈥減ublicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.鈥� The Attorney General is encouraged to also consider 鈥渙ther strategies鈥� directed at eradicating DEI in the private sector, including litigation and 鈥渞egulatory action and sub-regulatory guidance.鈥� The Jan. 21 Order includes a carve-out for 鈥渃ontracting preferences for veterans of the U.S. armed forces.鈥�

Related Developments

On January 21, 2025, President Trump appointed Commissioner Andrea R. Lucas as Acting Chair of the EEOC. Appointed by President Trump during his first term, Commissioner Lucas has served on the EEOC since 2020.

In a press release, Commissioner Lucas stated that her priorities include:

rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women鈥檚 rights to single鈥憇ex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.[6]

Following the Executive Orders, the three Democratic members of the EEOC, Charlotte Burrows, Jocelyn Samuels and Kalpana Kotagal, issued a defending DEI practices, stating

Common sense practices, such as monitoring hiring and promotions decisions, skills-based hiring, standardized interview practices, and robust recruitment, remain lawful and important ways to promote the goals of our nation鈥檚 laws and founding principles. These and other diversity, equity, inclusion and accessibility practices seek to include all workers according to their talents and abilities. ... Barring adoption of these practices can only result in legal risk to employers and lost opportunities for vulnerable communities.[7]

The developments at the EEOC underscore the growing uncertainty employers face in ensuring compliance with anti-discrimination laws amidst a shifting legal landscape.

Potential Implications & Key Takeaways for Businesses

Although the Anti-DEI and Gender Orders do not require immediate action on the part of the private sector (other than federal contractors), businesses should expect increased scrutiny in the near term, including government-initiated investigations and litigation, of their DEI policies and practices. To mitigate against these growing risks, businesses and other private employers may wish to:

• Review their DEI policies and programs as soon as practicable to ensure they are effectively addressing the risk of impending investigations and litigation directed at the private sector. Programs which provide a tangible employment or other benefit on the basis of race or another protected category should be highest priority for review. Programs which promote equal opportunity for all with respect to hiring, promotion and compensation, such as robust recruitment, standardized interview practices, addressing implicit bias, and monitoring hiring, promotion and compensation decisions remain essential to ensuring compliance with anti-discrimination laws.
• Federal government contractors with affirmative action programs related to race or sex should review their programs forthwith to ensure that they 鈥淸do] not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.鈥� Compliance is required by April 21, 2025.
• Review their gender identity-based policies and practices to ensure compliance as new guidance from federal agencies and the courts effectuating and interpreting the Gender Order is issued. Employers with policies and practices prohibiting discrimination and harassment and encouraging an inclusive workplace, including on the basis of gender identity, transgender status and/or nonbinary status, may continue to remind employees of those protections and measures, as well as their commitment to a safe, respectful and inclusive workplace.
• Consider whether and how they may wish to address these developments with employees, board members, investors, clients, vendors and other stakeholders.
• Seek legal guidance to ensure that corporate disclosures that reference company DEI programs do so in a manner that indicates compliance with applicable laws.
• Closely monitor regulatory and legislative developments, conduct regular audits of their anti-discrimination policies and seek guidance on mitigating legal risks.

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[1]听听听听听听听 On January 20, 2025, President Trump issued an executive order rescinding a number of previous executive orders described as 鈥渄eeply unpopular, inflationary, illegal, and radical.鈥� This Order includes the rescission of Executive Order 13985 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government) and Executive Order 13988 (Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation). See Exec. Off. of the President, Executive Order on Initial Rescissions of Harmful Executive Orders and Actions (Jan. 20, 2025), .

[2]听听听听听听听 Exec. Off. of the President, Executive Order on Ending Radical and Wasteful Government DEI Programs and Preferencing (Jan. 20, 2025), .

[3]听听听听听听听 Exec. Off. of the President, Executive Order on Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (Jan. 20, 2025), .

[4]听听听听听听听 Exec. Off. of the President, Executive Order on Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025), .

[5]听听听听听听听 Exec. Order No. 11,246, 3 C.F.R. 1964-1965.

[6]听听听听听听听 Press Release, U.S. Equal Emp. Opportunity Comm鈥檔, President Appoints Andrea R. Lucas EEOC Acting Chair (Jan. 21, 2025), .

[7]听听听听听听听 @JSamuelsEEOC, Twitter (Jan. 21, 2025, 4:33 PM), .