The White House is issuing a flurry of Executive Orders in the first few days of the administration. This client alert addresses two Executive Orders: Defending Women From Gender Ideology and Restoring Biological Truth to the Federal Government and Ending Illegal Discrimination and Restoring Merit-Based Opportunity.

For the most part, these orders declare new federal policy, but without additional regulatory or legislative action, private sector organizations are not required to take immediate steps, unless they have affirmative action programs under Executive Order 11246, which the Executive Order revokes. Some agency action in response to the orders will require notice and comment rulemaking. Other agency action could begin more immediately, such as through enforcement. Based on the deadlines in the orders, we expect to see agency activity in May 2025. Litigation will certainly follow. We are closely monitoring developments and are available to provide guidance based on your business needs. The implications will differ based on the organization’s mission, the state in which the organization does business, and whether the organization is a federal contractor, recipient of federal funds, or tax-exempt organization.

Sex and Gender

On January 20, 2025, President Trump’s first day in office, he issued Defending Women From Gender Ideology and Restoring Biological Truth to the Federal Government establishing that:

It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality. Under my direction, the Executive Branch will enforce all sex-protective laws to promote this reality, and the following definitions shall govern all Executive interpretation of and application of Federal law and administration policy:

(a) “Sex” shall refer to an individual’s immutable biological classification as either male or female. “Sex” is not a synonym for and does not include the concept of “gender identity.”

(b) “Women” or “woman” and “girls” or “girl” shall mean adult and juvenile human females, respectively.

(c) “Men” or “man” and “boys” or “boy” shall mean adult and juvenile human males, respectively.

(d) “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell.

(e) “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell.


Within 30 days of the date of the order – February 19, 2025, the Secretary of Health and Human Services must provide to the U.S. Government, external partners, and the public clear guidance expanding on the sex-based definitions.

The Executive Order requires sweeping and immediate agency action, with updates required within 120 days of the date of the order – May 20, 2025. For example, the Executive Order requires each federal agency to:

  • give the terms “sex”, “male”, “female”, “men”, “women”, “boys” and “girls” the meanings set forth in the order when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications;
  • remove and cease issuing all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate “gender ideology.” Agency forms that require an individual’s sex shall list male or female, and shall not request gender identity;
  • take all necessary steps, as permitted by law, to end the Federal funding of “gender ideology”;
  • assess grant conditions and grantee preferences and ensure grant funds do not promote “gender ideology”;
  • ensure that intimate spaces designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity;
  • rescind all guidance documents inconsistent with the requirements of the order or the Attorney General’s guidance issued pursuant to the order, and the order lists a number of documents that are rescinded.

The Executive Order requires the Attorney General to issue guidance to ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.

In addition, the Attorney General, the Secretary of Labor, the General Counsel and Chair of the Equal Employment Opportunity Commission, and each other agency head with enforcement responsibilities under the Civil Rights Act shall prioritize investigations and litigation to enforce the rights and freedoms identified.

Not only does the Executive Order require federal agencies to take action, but it also commands the pursuit of legislation to codify the definitions in the order.

Possible Implications

No immediate action is required, but organizations may wish to take steps to better prepare themselves if further action is taken by the federal government. For example:

  • Review your state’s anti-discrimination laws to see whether discrimination based on gender identity is prohibited in your state.
  • Take an inventory of where you use terms defined in the Executive Order, such as in applications, policies, websites, and training materials.
  • Take an inventory of bathrooms and changing rooms at your organization and whether they are designated by sex or gender identity.
  • Conduct an audit of federal contracts and grants to determine whether terms “promote gender ideology.”

Diversity, Equity, and Inclusion

On January 22, 2025, President Trump released Ending Illegal Discrimination and Restoring Merit-Based Opportunity (dated, after release, January 21, 2025) to end “illegal DEI and DEIA policies” in the federal government, corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education.1 The Executive Order characterizes DEI and DEIA as “illegal preferences and discrimination,” and it establishes that:

It is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work. I therefore order all executive departments and agencies (agencies) to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.

The Executive Order revokes a number of existing orders that promote equal opportunity and diversity, including Executive Order 11246, which has been in effect since 1965. This is the order through which many private sector federal contractors have implemented affirmative action plans under the purview of the Office of Federal Contract Compliance Programs within the Department of Labor (OFCCP). The Executive Order states that for 90 days, federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025. It orders OFCCP to immediately cease “’[p]romoting ‘diversity’”; “[h]olding Federal contractors and subcontractors responsible for taking ‘affirmative action’”; and “[a]llowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”

The Executive Order requires every contractor and recipient to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” It requires the Office of Management and Budget to “[e]xcise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures to streamline those procedures, improve speed and efficiency, lower costs, and comply with civil-rights laws” and to “[t]erminate all ‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements, programs, or activities, as appropriate.”

Within 120 days of the order, the Attorney General, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, must “submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”

Also within 120 days, the Attorney General and the Secretary of Education must jointly issue guidance regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).

The order does not “prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech” nor does it “prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.”

Possible Implications
No immediate action is required unless you are a federal contractor with an affirmative action plan under Executive Order 11246, but organizations may wish to take steps to better prepare themselves if further action is taken by the federal government. For example:

  • Determine whether the organization has an affirmative action program under Executive Order 11246 and, if so, consult with counsel immediately to determine next steps.
  • Conduct an audit to determine whether any of the organization’s programs include preferences based on race, color, sex, sexual preference, religion, or national origin and consult with counsel.
  • Take an inventory of any DEI programs and initiatives.
  • Review state law to determine whether any DEI programs or initiatives have been implemented to comply with state law.
  • Conduct an audit of federal contracts and grants to determine whether they address DEI or DEIA principles.

We are available to answer questions and assist with compliance.

1 There are other Executive Orders that address DEI in the federal government, such as: Ending Radical and Wasteful Government DEI Programs and Preferencing and Reforming the Federal Hiring Process and Restoring Merit to Government Service.

Note: This publication is distributed with the understanding that the author, publisher and distributor of this publication and/or any linked publication are not rendering legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.

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Holland Goodrow

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hgoodrow@potomaclaw.com

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