Workplace discrimination against transgender individuals remains a pressing issue, especially as recent executive orders have attempted to roll back protections. The evening news has carried numerous stories about the executive orders implemented by the Trump Administration. Article II of the Constitution is the source of authority for executive orders. Article II vests the president with executive power over the government, including the obligation to “take care that the laws be faithfully executed.” An executive order is a written directive, signed by the president, that orders the government to take specific actions to ensure “the laws be faithfully executed.” With an executive order, President Trump can order the federal government to take any steps that are within the scope of the constitutional authority of the executive branch, and do not violate any federal law. An executive order can direct federal agencies how to implement a statute. Executive orders do not require Congressional approval. However, executive orders have limitations. A Federal court can overturn an executive order if it violates the Constitution or if it exceeds the president’s enforcement authority.
President Donald Trump has targeted transgender and nonbinary people with a series of executive orders since he returned to office. On his first day in office, President Trump signed an executive order attempting to mandate discrimination against transgender people across the federal government and government programs, issuing a sweeping order that signaled a big change in how the Trump Administration would deal with transgender people and their rights. One of the executive orders, Executive Order 14168, was the “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The Order states that the government would recognize only two unchangeable sexes: female and male. The Order is part of a broader effort to erase protections and recognition for transgender people. It rejects the concept of "gender ideology," which it describes as replacing "the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true."
In response to the executive orders, the Equal Employment Opportunity Commission (EEOC) has moved to dismiss six of its cases filed on behalf of workers who alleged gender identity discrimination, showing the Agency’s alignment with President Trump’s policies. The EEOC is a federal agency that is responsible for enforcing workplace anti-discrimination laws. The EEOC has taken the position that those cases conflict with President Trump's recent executive orders.
While executive orders guide federal agencies in enforcing laws, they cannot override statutes like Title VII of the Civil Rights Act of 1964, which prohibits sex-based discrimination. Indeed, President Trump’s executive orders appear to conflict with the Supreme Court’s holding in Bostock v. Clayton County, 590 U.S. 644 (2020). In this landmarkcivil rights decision, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity. In Bostock, an employer fired a long-time employee shortly after the employee revealed that he or she was homosexual or transgendered. The termination was for no reason other than the employee’s homosexuality or transgender status. The Supreme Court held that the employers "violated Title VII of the Civil Rights Act of 1964 when they fired a long-time employee shortly after the employee revealed that he or she was homosexual or transgender.” The Court went on to say that it was “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Title VII imposes liability on employers only when they fail or refuse to hire, discharge, or otherwise discriminate against someone because of a statutorily protected characteristic like sex. When it comes to Title VII, an employer cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one cause of that adverse employment decision, that is enough to trigger the protections of Title VII. The Supreme Court unambiguously rejected the argument that employers were free to fire LGBTQ workers simply because of their sexual orientation or gender identity. President Trump's executive order does not impact the validity of a binding decision by the United States Supreme Court.
The New Jersey Law Against Discrimination (“NJLAD”) is a state law analog to Title VII. Like Title VII, the NJLAD also prohibits discrimination "because of" sex in employment. The NJLAD was amended to prohibit discrimination based on gender identity or expression and affectional or sexual orientation. In addition to sex-based discrimination, the NJLAD protects transgendered individuals against disability discrimination. "Gender dysphoria" constitutes a disability under the NJLAD. Gender dysphoria has been recognized by the American Psychiatric Association's Diagnostic & Statistical Manual of Mental Disorders ('DSM') as clinically significant distress or impairment related to gender incongruence. The NJLAD explicitly protects employees from discrimination based on gender identity or expression and recognizes gender dysphoria as a protected disability. This means that in New Jersey, transgender employees are safeguarded against hiring and firing discrimination, workplace harassment, denial of promotions, and policies that force them to conform to gender norms that do not align with their identity. While there is much uncertainty with the rights of transgendered individuals with the Trump Administration’s policies, New Jersey law remains clear. If you or someone you know is facing discrimination due to their transgender status, legal remedies exist to ensure that no one has to choose between their identity and their livelihood. Contact Morgan Rooks PC today.