I’ve seen a lot in the press recently, and had comments and questions from the TBA Leadership Law program (TBALL), to whom I presented last month, about the reach of presidential authority through Executive Orders, efforts to remove DEI programs, and the potential to overturn Bostock and Obergefell by the current administration with its flurry of executive orders from the Oval Office. Can a president overturn Supreme Court decisions by use of executive powers? Under the Constitution, the answer is a resounding "no!" If the rule of law and constitutional requirements are ignored by courts, private companies, citizens, law organizations, then, well, it depends.

A Quick Constitutional Review (Unless You Took Constitutional Law Recently)

As with any good story, we need to start at the beginning. It’s March 4, 1789, and the new U.S. government begins with a ratified Constitution. The Massachusetts Compromise ensured that a Bill of Rights would be adopted and added to the Constitution, which it was on Dec. 15, 1791, adding 10 amendments. Since then, our Constitution has been amended 27 times, with the 9th Amendment stating that rights not enumerated in the Constitution are “retained by the people.” I mention this to remind us that our government has limits.

One of these 27 amendments is the 14th, which under Section 1 states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The 15th Amendment further provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” 

The Civil Rights Act of 1964 ('Because of Sex')

Relying on its authority under the 14th and 15th Amendments, and the Commerce Clause power (Article 1, Section 8, Clause 3), Congress passed the Civil Rights Act of 1964. The point of this sweeping law was to make it very clear that discrimination based upon race, color, religion, sex or national origin is outlawed. Through Title VII of that law, 42 USC § 2000e, employers (including federal, state and local governments, and private sector employers with 15 or more employees) were prohibited from discriminating in employment decisions. Specifically, it describes prohibited employer conduct as follows:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin; or

(2) to limit, segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.[1]

Bostock with Obergefell Creates Constitutional Protections ('Because of Sex' includes Sexual Orientation and Transgender Protection)

In Bostock v. Clayton County,[2] the U.S. Supreme Court (SCOTUS) in a 6-3 decision declared that Title VII of the Civil Rights Act of 1964 protects employees from discrimination by employers on the basis of sexual orientation and gender identity. In this decision, which involved three consolidated cases,[3] SCOTUS decided that the statutory language of Title VII, pursuant to 42 USC 2000e-2(a)(1), protects LGBT employees. Justice Neil Gorsuch (a President Trump nominee), writing for the majority, states,

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.[4]

Although not relying directly on Obergefell v. Hodges,[5] which granted same-sex marriage equality under the 14th Amendment, Bostock along with Obergefell, (and others) created a foundational constitutionally-protected framework allowing same-sex couples, and members of the LGBT community, to breathe and to know that the court system will enforce protections for marriage and in employment settings.

Executive Orders after Bostock

After Bostock, President Joe Biden issued a number of executive orders enhancing protection for the LGBT community which included Executive Order 13988 (Jan. 20, 2021), Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.[6] This order specifically references Bostock and directed agencies to review and consider additional actions to implement the policy set forth in that executive order. That policy included that,

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes...[7]

On Jan. 20, 2025, upon taking office for the second time, President Donald Trump issued Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”[8] The policy of this executive order is “to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.” This executive order has specific language as to Bostock:

The prior administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act.  This position is legally untenable and has harmed women.  The attorney general shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities.  In addition, the attorney general shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under constitutional and statutory precedent.[9]

This January 2025 executive order additionally states that it would “supersede conflicting provisions in any previous Executive Orders or Presidential Memoranda,” including Executive Order 13988 and others. It went on to state, “These Executive Orders are hereby rescinded, and the White House Gender Policy Council established by Executive Order 14020 is dissolved.”

Executive Order Authority (They Do Not Overturn or Replace Existing Law)

Currently, Executive Order 13988 is rescinded and replaced by Executive Order 14168. Does that mean Bostock has been overturned? The constitutional answer here is no. Executive orders do not replace the Constitution, do not repeal federal statutes and codes, and do not create a legal authority superior to SCOTUS.

The president has a duty under the Constitution to “take Care that the Laws be faithfully executed” (Article II, Section 3), and to “prescribe regulations for the conduct of employees in the executive branch.”[10] The Constitution does not reference “executive orders,” but they have been recognized by case law, and through scholarly review.[11] Executive orders are, however, subject to legal challenge.[12]

Aftermath of Executive Order 14168

Following Executive Order 14168, the Equal Opportunity Employment Commission (EEOC) issued a press release on Jan. 28, 2025, explaining that pursuant to the order, EEOC Acting Chair Lucas had taken various actions, including announcing that her priorities include “to defend the biological and binary reality of sex and related rights,” removing the agency’s “pronoun app” and removing “materials promoting gender ideology.”[13] That same press release also explained that, when issuing certain documents, the commission acts by majority vote. Based on her existing authority, the acting chair cannot unilaterally remove or modify certain “gender identity”-related documents subject to the president’s directives in the executive order. Those documents include the commission’s Enforcement Guidance on Harassment in the Workplace (issued by a 3-2 vote in 2024); the EEOC Strategic Plan 2022-2026 (issued by a 3-2 vote in 2023); and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028 (issued by a 3-2 vote in 2023).[14]

Litigation has begun in response to Executive Order 14168. On March 6, the American Civil Liberties Union (ACLU) filed suit in the U.S. District Court for the District of Rhode Island, against the National Endowment for the Arts (NEA), challenging the executive order’s requirement that all grant applicants must certify that “federal funds shall not be used to promote gender ideology.” The ACLU lawsuit alleges violations of the 1st Amendment, 5th Amendment, and Administrative Procedures Act.[15] In response on April 7, NEA agreed to remove this certification requirement upon application but “has not agreed to remove its new eligibility criteria, under which any projects that appear to ‘promote gender ideology’ will not receive an award.”[16] Litigation is ongoing.

Key Takeaways

Where does all of this leave us as practitioners representing clients, especially the LGBT employees in Tennessee or employers of LGBT employees? I’ve developed four takeaways that tell the complicated current status:

1. Bostock is still good law, meaning an employee may file an EEOC charge and suit under Title VII for discrimination based upon sexual orientation and being transgender;
2. The president disagreeing with Bostock and putting that into an executive order does not overrule Bostock, but may create feelings of uncertainty and distress for LGBT employees and confusion among employers;
3. The current chair of the EEOC had made clear that she is opposed to the EEOC enforcing transgender rights, but even she recognizes that she “cannot unilaterally remove or modify certain 'gender identity'-related documents subject to the president’s directives in the executive order”;
4. All of the above should be explained to your client, after which per usual practice, you should guide your client in their next legal steps; as it is the judges and not the president who will decide the outcome of your next Title VII because of sex (sexual orientation/gender identity) case.  

In the midst of these uncertain times, it is worth remembering the oath we all took to practice law in Tennessee:

I, [insert your name], do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Tennessee. In the practice of my profession, I will conduct myself with honesty, fairness, integrity and civility to the best of my skill and abilities, so help me God.

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Maureen Truax Holland is chair of the TBA LGBT section. A graduate of Vermont Law School, she is a partner at Holland & Associates PC (one of the first mother/daughter firms in Memphis), is the recipient of the SHRM Memphis 2024 Labor and Employment Attorney of the Year, and is an adjunct professor at the University of Memphis teaching negotiation and mediation. 

NOTES

[1] 42 USC § 2000e-2(a).

[2] 590 U.S. 644 (2020).

[3] Bostock (11th Circuit), Altitude Express v Zarda (2d Circuit), and R.G & G.R. Harris Funeral Home Inc. v. EEOC (6th Circuit)

[4] Bostock, 590 U.S.at 651-52.

[5] 576 U.S. 644 (2015).

[6] Exec. Order No. 13988, 86 FR 7023 (2021).

[7] Id.,§ 1.

[8] Exec. Order No. 14618, 90 FR 8615 (2025).

[9] Id. § 3(f).

[10] 5 U.S.C. §7301

[11] See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (stating that a president’s power to issue executive orders “must stem either from an act of Congress or from the Constitution itself”).

[12] As an aside, the U.S. Department of State started their numbering of executive orders in 1907 with the first one being retroactive to President Lincoln.

[13] EEOC, Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace, Jan. 28, 2025 (available at www.eeoc.gov/newsroom/removing-gender-ideology-and-restoring-eeocs-role-protecting-women-workplace).

[14] Id.

[15] Rhode Island Latino Arts et al. v. Nat’l Endowment for the Arts et al., Case No. 1:25-cv-00079 (D.R.I. Mar. 6, 2025).

[16] ACLU Press Release, In Response to ACLU Lawsuit, National Endowment for the Arts Removes Certification Requirement on Funding Applications, Mar. 7, 2025 (available at www.aclu.org/press-releases/nea-funding-certification-removed.)