Trump’s ‘Illegal’ DEI Orders Hit Due Process Questions in Court

A federal judge’s decision to block parts of President Donald Trump’s anti-DEI executive orders leaned heavily on their “vagueness” making it difficult for federal contractors and other private-sector businesses to comply.

The ruling highlights a common thread in the Trump administration’s legal hurdles, as plaintiffs in similar lawsuits challenge the president’s orders across various policy areas under the Fifth Amendment’s due process clause. Those include an executive order declaring the federal government recognizes only two sexes and reversing policy protections for transgender Americans, plus at least two more lawsuits against the anti-DEI orders.

Judge Adam Abelson of the US District Court for the District of Maryland on Feb. 21 granted a preliminary injunction covering portions of the extensive Jan. 20 and Jan. 21 executive orders related to DEI, finding parts of the orders were unconstitutionally vague and that others violated free speech rights. The Trump administration appealed the case to the US Court of Appeals for the Fourth Circuit.

The orders threaten a loss of federal funding and civil investigations against entities operating diversity, equity, and inclusion programs—as well as those that operate accessibility programs—that the administration considers “illegal” and discriminatory.

Trump’s orders leave contractors and their employees unsure of whether their work will be considered “equity-related” and thus subject to defunding, Abelson wrote, adding that they leave “the private sector at a loss for whether the administration will deem a particular policy, program, discussion, announcement, etc. to be among the ‘preferences, mandates, policies, programs, and activities’ the administration now deems ‘illegal.’”

The Baltimore decision was an initial win for the National Association of Diversity Officers in Higher Education who brought the suit alongside groups representing university professors and restaurant workers, plus Baltimore city officials.

“You can be broad in a political context. That might make sense. That might get you elected,” said Alex Hontos, an attorney with Dorsey & Whitney LLP who advises federal contractors. “But you can’t be broad or overly broad or vague in creating enforceable government rules, which is essentially what the court said was going on in the DEI order, and that violated the Constitution.”

Due process claims likewise show up in litigation contesting Trump’s efforts to expedite removal of undocumented immigrants, ban transgender people from military service, and reclassify federal civil service employees with fewer protections against termination.

The Fifth Amendment’s due process clause provides that no person shall be “deprived of life, liberty, or property, without due process of law.” The US Supreme Court has interpreted the clause to also guarantee “equal protection” relative to federal action, comparable to the 14th Amendment’s equal protection requirements covering state governments.

The White House maintains that “all of President Trump’s executive actions are lawful, constitutional, and intended to deliver on the promises he made to the American people,” spokesperson Harrison Fields said in an emailed statement. “Partisan elected officials and judicial activists who seek to legally obstruct President Trump’s agenda are defying the will of 77 million Americans who overwhelmingly re-elected President Trump, and their efforts will fail.”

Trump received 77.3 million votes in the November election, slightly less than 50% of the popular vote, to Democrat Kamala Harris’s roughly 75 million votes.

Equal Protection Claims

Challengers in at least two other lawsuits allege Trump’s orders targeting DEI programs fall short of the Constitution’s guarantee of due process. In those cases, the plaintiffs contest the lack of clarity while also challenging the “two sexes” order for violation of the equal protection clause.

The gender order “repudiates the existence of transgender people altogether,” said Camilla Taylor, deputy legal director for litigation at Lambda Legal, which represents plaintiffs in the two broader cases. “I can’t imagine a more blatant violation of the equal protection guarantee than singling out a group of people and saying you shall not exist. You should be erased from public life.”

The National Urban League and other civil rights groups filed one of those cases Feb. 19 in federal court in Washington, D.C., while the San Francisco AIDS Foundation and GLBT Historical Society led a similar lawsuit, filed Feb. 20 in the US District Court for the Northern District of California.

The lawsuits’ due process claims also echo past challenges to anti-DEI policies at the state and federal levels.

A federal court blocked Trump’s 2020 order banning use of federal funds to teach “divisive concepts” such as critical race theory in workplace training, partly on the grounds that it was overly vague and violated due process.

A panel of federal appellate judges in Atlanta in 2024 likewise blocked Florida from restricting private-sector employers’ teaching of certain race and gender concepts under the “Stop WOKE Act” championed by Gov. Ron DeSantis. In that case, the appeals court rejected the law on First Amendment grounds without addressing the plaintiffs’ due process claims.

The Trump orders’ lack of clarity has left federal contractors and other private-sector employers scrambling to figure out how to manage their existing diversity programs and navigate issues such as employee pronoun use in the workplace. Attorney General Pam Bondi‘s initial wave of enforcement memos after taking over the Justice Department indicated it could pursue criminal prosecutions related to DEI programs it views as illegal.

“There’s not really a good roadmap for what’s considered discriminatory preference or illegal discrimination within DEI programs,” said Tracey Diamond, an employment attorney with Troutman Pepper Locke LLP, who advises employers.

“None of those terms are defined yet” in the executive orders, she said. “That makes it very difficult for companies that are trying to avoid scrutiny by various federal agencies.”

Hontos, the Dorsey & Whitney lawyer who’s also a former Justice Department trial attorney, said of the Baltimore case: “You’ve got a court that is sort of giving credence to what most government contractors and grants in America were struggling with over the past couple of weeks, which is what exactly is prohibited.”