Trump Administration Order on Sex and Gender Identity Will Impact Benefits Compliance

In its first day in office, the second Trump administration issued an executive order regarding the meaning of sex, gender identity, and related terms that will affect compliance requirements under various benefit provisions. The order instructs the federal administrative agencies to take conforming actions during the coming weeks and months.

In its first day in office, the second Trump administration issued an executive order on issues involving biological sex and gender identity as a matter of federal policy (Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (Jan. 20, 2025)). Among other topics, the order addresses the meaning of sex, gender identity, and related terms that will affect numerous benefits-related compliance requirements. The order instructs the federal administrative agencies to take conforming actions during the coming weeks and months.

Order Contains Revised Definitions of Sex, Gender Identity, and Related Terms

Under the order, the US will now recognize two sexes, male and female—both of which the order characterizes as not changeable. The order also includes a seven-part set of related defined terms that will apply to all the Trump administration's interpretations and applications of federal law and policy. For example, the order includes the following definitions:

Sex means "an individual's immutable biological classification as either male or female" and will expressly exclude the concept of gender identity (also a defined term).
Female refers to "a person belonging, at conception, to the sex that produces the large reproductive cell."
Male refers to "a person belonging, at conception, to the sex that produces the small reproductive cell."
Gender identity means "a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex."

The order also defines terms such as women, men, boys, and girls.

In addition, the order defines gender ideology as a concept that:

replaces 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. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one's sex.

The definition characterizes gender identity as inconsistent in that it at once:

Diminishes sex as an identifiable or useful category.
Posits that individuals can be "born in the wrong sexed body."

The order calls for legislative text to be developed (within 30 days) to codify the order's definitions by Congress.

Conforming Requirements for Agency Rulemaking and Communications

In another section of the order (titled "Recognizing Women Are Biologically Distinct From Men"), the administration instructs the Department of Health and Human Services (HHS) to provide clear guidance to the federal government and public that expands on the order's sex-based definitions. The order directs all federal employees to enforce laws applicable to sex-based rights and protections to "protect men and women as biologically distinct sexes." The agencies also must use:

The order's definitions of sex (and related terms) in interpreting or applying statutes, regulations, or guidance—as well as in official agency business, communications, and other documents.
The term sex (and not gender) in all federal policies and documents when administering or enforcing sex-based distinctions.

In provisions addressing gender ideology, the order directs the agencies to:

Remove and no longer issue statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology.
Use forms that, when requiring an individual's sex, simply list male or female—and refrain from requesting gender identity.

The order also bars federal funds from being used to promote gender ideology.

Interpretation of Supreme Court's Bostock Ruling

The order notes that the Biden administration took the view that the Supreme Court's 2020 Bostock ruling, addressing Title VII of the Civil Rights Act of 1964, required gender identity-based access to single-sex spaces under Title IX of the Educational Amendments Act (Bostock v. Clayton County, Ga., 590 U.S. 644 (2020); see generally Legal Update, Texas District Court Vacates HHS Guidance on Gender Affirming Care Under ACA Section 1557). In its order, the Trump administration characterizes this view as "legally untenable" and harmful to women. As a result, the order directs the Attorney General to issue guidance to the agencies to:

Revise the former administration's reading of Bostock regarding sex-based distinctions in agency activities.
Protect sex-based distinctions, which the order indicates are expressly permitted under Constitutional and statutory precedent.

Agency Implementation of Order's Provisions; Rescinded Biden-Era Orders

Under the order, federal agency heads must provide President Trump a report addressing their respective agencies' implementation of the order, through the Office of Management and Budget (OMB). The department heads' reports must include related updates to agency documents (including regulations, guidance, forms, and communications).

The order also repeals several Biden administration orders, including:

Executive Order 13988 ("Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation").
Executive Order 14075 ("Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals").

In a separate order, the Trump administration also revoked numerous other Biden administration executive orders (Initial Rescissions of Harmful Executive Orders and Actions (Jan. 20, 2025)). At least some of these now-revoked orders pertained to benefits issues (for example, see Executive Order 14070 ("Continuing to Strengthen Americans' Access to Affordable, Quality Health Coverage")).

Practical Impact

The Trump administration's executive order marks a sharp departure from the policy of the outgoing Biden administration and will affect numerous employee benefits mandates—including some of the more controversial requirements under the Affordable Care Act (ACA) (see Practice Note, Preventive Health Services Under the ACA, Other Than Contraceptives: Sex-Specific Recommended Preventive Services). In the ACA Section 1557 space, for example, the order likely means the end of certain Biden administration interpretive and regulatory policies (see ACA Section 1557 Compliance for Health Coverage Toolkit). Since 2021, for example, the Biden administration's HHS has interpreted Bostock to mean that Section 1557's prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity (SOGI). Under May 2024 final regulations that implemented Section 1557, health plan insurers were prohibited from providing or administering health insurance coverage to (among other things):

Deny, cancel, restrict, or refuse to issue/renew health insurance on the basis of sex (or other prohibited criteria).
Deny or limit coverage of a claim on the basis of sex.
Impose additional cost-sharing or other coverage restrictions on the basis of sex.
Have benefit designs or marketing practices that discriminate on the basis of sex.

Even before the 2024 presidential election, the 2024 regulations were the subject of litigation (see Legal Update, Applying Supreme Court Decision Overruling Chevron, Three District Courts Bar HHS from Enforcing ACA Section 1557 Final Regulations on Gender Identity). Now, if recent history and the new executive order are a guide, the 2024 regulations will likely be replaced with a version that is significantly more limited in scope (see Legal Update, Re-Proposed ACA Section 1557 Rules Include Scaled Back Compliance Obligations and Practice Note, June 2020 Final Regulations Under ACA Section 1557: Nondiscrimination in Health Programs and Activities).

In other developments, the second Trump administration issued a regulatory freeze that bars the federal agencies from finalizing regulations until they have been reviewed by the Trump administration (Regulatory Freeze Pending Review (Jan. 20, 2025); see Legal Update, White House Issues Broad Freeze of Proposed Regulations Pending Review by Trump Appointees). The regulatory freeze will likely affect various proposed regulations issued in recent months under the Biden administration—including proposals addressing the HIPAA Security Rule (see Legal Update, Proposed HIPAA Security Rule Regulations Emphasize Written Policies and Procedures, Ongoing Maintenance, and Regulating AI). However, the Biden administration already withdrew some of its more recent regulatory proposals before leaving office. For example, see Articles:

For more information, see Abortion and Contraceptives Services for Group Health Plans Toolkit and Health Equity Toolkit.