Trump ‘Two Sexes’ Order Complicates Employers’ Rules on Pronouns

The Trump administration’s shifting anti-bias enforcement priorities are muddling an already intricate legal landscape for employees who want to use pronouns that align with their gender identity in the workplace.

Booz Allen Hamilton Holding Corp. is among private companies that retracted diversity, equity, and inclusion initiatives such as the use of pronouns or bathrooms corresponding with workers’ identified gender in response to President Donald Trump’s recent executive orders. Trump’s directives also curtailed DEI efforts in the federal workforce and among companies doing business with the government.

Trump’s EO declaring that the government recognizes male and female as the only two immutable sexes creates potential conflicts with federal and state laws, and will trigger more suits over protections for transgender and gender nonconforming individuals, legal scholars said.

The shift bolsters conservative efforts to blunt the reach of the US Supreme Court’s 2020 Bostock v. Clayton County decision that Title VII of the 1964 Civil Rights Act prohibits sexual orientation and gender identity discrimination. The administration’s position on pronouns and other gender identity issues will be immediately felt at the federal regulatory level, but companies may want to avoid making hasty decisions driven by White House pressures.

“Employers are risk-averse,” said Chai Feldblum, a former Democratic member of the US Equal Employment Opportunity Commission. Trump’s orders undercut current legal requirements, but the law could only be further undermined if “employers give them more credence than they should” and “let themselves be chilled and cowed,” she said.

Here are three legal areas for employers to consider regarding pronoun usage:

Religious Accommodation

Faith-based objection to workplace anti-bias training and policies addressing workers’ desired name or pronoun is a contentious issue in the courts.

Since Bostock, there’s been a steady increase in such disputes from religious workers. The issue appears primed for further Supreme Court review, especially after the justices’ unanimous 2023 Groff v. DeJoy ruling made it easier for religious workers to challenge policies that conflict with their beliefs when a request for exemption is denied under Title VII.

Employers denying a religious exemption because it’s an undue hardship must show that granting it “would result in substantial increased costs” to their business, the high court held. Groff opens the door for lower courts to clarify the economic and non-economic factors for an employer to show hardship.

Until there’s a binding precedent for businesses to balance workers’ sincerely held religious beliefs with the rights of other protected groups, Seyfarth Shaw LLP partner Sam Schwartz-Fenwick said companies must engage in an interactive accommodation process.

“It’s very risky for an employer facing a religious issue in the workplace to just dismiss it. It’s clear from the Supreme Court that you’re supposed to go through an accommodations process in order to show why accommodating it would be an undue hardship,” he said. “It’s really important to try to find ways to get to ‘yes’ with your employees without harming the rights of their coworkers.”

Determining the appropriate resolution without risking a potential lawsuit can be tricky depending on the context of the issue, said Jared Speier, a partner at Stradling Yocca Carlson & Rauth LLP.

“Ideally, you can find an accommodation that everybody is the most comfortable with, and that would forestall or hopefully prevent any sort of litigation that arises from it,” he said. “Even if that’s the solution you end up with, if you involve the employees and engage in an interactive process, it’s certainly going to turn out better for you.”

Free Speech

But in the free speech context, at least one federal appeals court held that a religious employee isn’t legally obligated to recognize a co-worker’s name or pronouns.

The Sixth Circuit’s 2021 Meriwether v. Hartop opinion held that an Ohio university violated a Christian professor’s First Amendment free speech rights by disciplining him for refusing to comply with a policy requiring faculty to refer to students by their “preferred pronouns.”

The Constitution allows employees to exercise their free speech rights without government interference. However, it doesn’t shield against discipline by a private-sector employer if, for instance, a worker’s behavior displays prejudice or has an adverse effect on the employer.

“‘I have free speech’ doesn’t mean I get to harass you with my free speech,” Speier said. “So if it has an adverse effect on the employer, it can be curtailed to that extent.”

Misgendering

Some federal courts, including the conservative US Court of Appeals for the Eleventh Circuit, have endorsed the EEOC’s recent harassment guidance that said, citing Bostock, that an employer or co-worker intentionally and repeatedly using a transgender worker’s wrong name or identified pronoun could contribute to a hostile work environment claim under Title VII.

However, EEOC Acting Chair Andrea Lucas, appointed by Trump, plans to rescind the guidance once she has a quorum of three commissioners to vote. She echoed concerns from conservative critics that the Biden administration’s interpretation of Bostock is flawed, as the justices didn’t address pronoun use and gender-identified restrooms.

Trump separately asked the attorney general to issue guidance reinterpreting Bostock.

Companies must still honor transgender and non-binary employees’ requests regarding their identities, and immediately probe harassment claims just as they would for complaints regarding any other protected class, Schwartz-Fenwick said. There’s also a risk for getting sued by the misgendered worker, he added.

Workers often include their names and pronouns in their signature blocks to prevent misgendering, especially with gender-neutral names, as interactions among employees from diverse backgrounds increase, he said. But many company leaders still reject workers’ pronouns for being “too confusing,” a recent study by ResumeBuilder.com found.

“In employment settings, it’s typically a best practice to follow someone’s lead and call them what they want to be called because it helps to foster a culture of respect, and people do their best work when they’re in a culture that respects them,” Schwartz-Fenwick said.