#CivilRightsLaw

[executive-orders]

Government Agencies and Employees: Defending Women From Gender Ideology Extremism and Restoring Biological Truth (EO 14168)

Source: https://www.federalregister.gov/d/2025-02090

Analysis of Executive Order 14168

Title and Purpose:

The executive order titled "Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government" aims to reassert biological sex distinctions in federal policy, explicitly opposing what it terms as "gender ideology."

Key Components: (1) Biological Definitions:

The order mandates a strict binary understanding of sex, defining "sex" as an immutable biological classification. It differentiates terms like "male," "female," "man," "woman," "boy," and "girl" based solely on biological criteria at conception.

(2) Policy and Implementation:

Agencies are directed to enforce laws using these biological definitions. This includes revising policies, forms, and communications to exclude gender identity in favor of biological sex.

It rescinds previous executive orders that supported gender identity policies, including those that allowed for transgender inclusivity in federal documents and services.

(3) Public and Private Spaces:

The order seeks to ensure that spaces like prisons, shelters, and bathrooms are segregated strictly by biological sex, not gender identity. This includes reversing policies that allowed transgender individuals in facilities corresponding to their gender identity.

(4) Legal and Funding Implications:

It instructs the Attorney General to reinterpret the Supreme Court's Bostock v. Clayton County decision, suggesting that it does not extend to sex-based distinctions in federal policy outside employment discrimination.

Federal funding should not support initiatives promoting gender ideology, which includes educational and health policies.

(5) Guidance and Reporting:

Agencies must submit updates on how they implement these changes, including changes to documents and ensuring federally funded entities adhere to this policy.

Potential Impacts:

Social and Legal: This order could lead to significant legal challenges, as it might be seen as conflicting with recent interpretations of civil rights laws concerning discrimination based on gender identity. It could also affect transgender individuals' access to services and rights in federal contexts.

Cultural and Political: The order represents a significant cultural and political statement, potentially deepening divides on gender issues. It might energize cultural debates over gender identity versus biological sex.

Administrative: Implementing this order would require substantial policy revisions across numerous federal agencies, potentially leading to confusion, legal battles, or delays in service provision.

Critique:

Human Rights Concerns: Critics might argue that this order infringes on human rights, particularly the rights of transgender individuals to live according to their gender identity, which is recognized by many international human rights organizations.

Scientific and Medical Perspectives: The simplification of sex to a binary model disregards a growing body of scientific research on sex, gender, and intersex conditions, potentially ignoring the complexity of human biology and identity.

Legal Precedent: Reinterpreting Bostock in this manner could face judicial scrutiny, as the original ruling was quite clear on protections under Title VII extending to gender identity.

This executive order reflects a significant policy shift, one that would require careful legal and ethical scrutiny for its implementation and effects.

Evaluation in Relation to the Law of the United States

Constitutional and Legal Implications: (1) First Amendment - Freedom of Speech and Religion:

Speech: The order could be seen as restricting speech by mandating specific definitions for "sex" and "gender," potentially infringing on the freedom of expression for individuals and organizations that recognize or advocate for gender identities beyond binary classifications. Legal challenges might arise concerning compelled speech or censorship.

Religion: By defining "sex" strictly in biological terms, the order might conflict with religious freedoms if certain religious organizations or individuals hold beliefs about gender that differ from these definitions.

(2) Equal Protection Clause of the Fourteenth Amendment:

This clause mandates that no state shall deny to any person within its jurisdiction the equal protection of the laws. The order's definitions and mandates could be challenged if they are seen to discriminate against transgender or non-binary individuals by denying them equal treatment under the law.

(3) Title VII of the Civil Rights Act of 1964 and Bostock v. Clayton County (2020):

The Bostock decision interpreted sex discrimination to include discrimination based on sexual orientation and gender identity. Executive Order 14168 explicitly seeks to undo or reinterpret this legal precedent, which could lead to significant legal disputes. The Attorney General is directed to issue guidance correcting this interpretation, but this might not hold up in court without new legislative action or a reversal by the Supreme Court.

(4) Title IX of the Education Amendments of 1972:

The order mandates a strict biological interpretation of sex, which could conflict with current educational policies and guidance on transgender student rights under Title IX. Reversing recent interpretations might require Congressional action or new court decisions that align with the order's directives.

(5) Administrative Procedures Act (APA):

The order's directive for agencies to rescind guidance and change regulations might not align with the APA's requirements for notice-and-comment rulemaking. Agencies must typically provide public notice and allow for comments before changing significant regulations, which could delay or challenge the implementation of the order.

(6) Federal Funding and Grants:

By directing agencies to ensure federal funding does not support "gender ideology," this could lead to legal challenges regarding the criteria for funding, especially if seen as discriminatory or unconstitutional under existing civil rights protections.

Potential Legal Challenges:

Civil Rights Lawsuits: Transgender and non-binary individuals or advocacy groups might sue based on violations of civil rights laws, arguing discrimination based on sex and gender identity.

Federal Court Challenges: Courts might need to adjudicate conflicts between this executive order and existing legal interpretations, particularly those from Bostock and subsequent administrative guidance.

Legislative Pushback: Congress could attempt to pass legislation either supporting or countering this executive order, leading to potential vetoes or further legal battles.

Conclusion: The executive order, while within the President's authority to issue, would likely face numerous legal challenges based on current interpretations of the Constitution, civil rights statutes, and judicial precedents. Its implementation would hinge on judicial review, potentially leading to a patchwork of enforcement depending on court decisions. This could result in a significant legal and cultural debate over definitions of sex and gender in U.S. law and policy.

The executive order raises several ethical considerations that can be analyzed through various lenses:

Ethical Principles and Considerations: (1) Human Dignity and Respect:

Positive: The order aims to protect the dignity of women by ensuring spaces designated for them remain exclusive to biological females, potentially safeguarding privacy and safety in intimate environments like shelters or prisons.

Negative: It might undermine the dignity of transgender individuals by invalidating their gender identity and potentially exposing them to harassment or discrimination by denying recognition of their lived gender.

(2) Equality and Non-Discrimination:

Negative: By strictly defining sex based on biology and rejecting gender identity, the order could be seen as discriminatory against transgender, non-binary, and intersex individuals, potentially violating principles of equality under the law.

(3) Freedom of Expression and Identity:

Negative: The order curtails the freedom of individuals to express and live according to their gender identity, which could be seen as an infringement on personal autonomy and freedom of expression.

(4) Public Policy and Governance:

Positive: It might be argued that this order seeks to clarify policy for more straightforward application in areas like sports, privacy, and security where sex distinctions are seen as necessary.

Negative: It dismisses the complexities of gender identity, potentially leading to policies that do not reflect the diversity of human experience and could result in marginalization or harm to minorities.

(5) Legal and Scientific Accuracy:

Debatable: The order's definitions of "sex" and "gender identity" reflect one perspective in an ongoing scientific and legal debate. While some might argue it aligns with a traditional view of biology, others see gender as a more fluid and socially constructed aspect of identity, backed by emerging scientific research.

(6) Impact on Mental Health and Social Cohesion:

Negative: Policies like these could increase mental health issues among transgender individuals, including higher rates of depression, anxiety, and suicide, due to lack of recognition and societal acceptance.

(7) Legal Repercussions and Precedents:

The order positions itself against interpretations of previous legal decisions like Bostock v. Clayton County, potentially leading to legal challenges or a reevaluation of rights under existing civil rights legislation.

Ethical Evaluation Conclusion:

While the executive order might be well-intentioned in protecting what it perceives as women's rights and safety, it does so at the potential cost of the rights, dignity, and well-being of transgender, non-binary, and intersex individuals. Ethical governance ideally balances the protection of one group without unduly harming another, promoting inclusivity and respect for all identities. This order might be seen as overly restrictive, potentially fostering an environment of exclusion rather than one of inclusion and understanding.

A more ethical approach might involve:

Creating policies that ensure safety and privacy for all while acknowledging and respecting diverse gender identities.

Consulting with a wide range of stakeholders, including transgender advocates, to craft inclusive policies.

Investing in education and awareness to bridge understanding between different groups, rather than entrenching divisions through policy.

Evaluation of the following rule in this Executive Order: "Female means a person belonging, at conception, to the sex that produces the large reproductive cell. Male means a person belonging, at conception, to the sex that produces the small reproductive cell."

(1) Biological Accuracy:

Strengths:

The definition aligns with biological sex determination at a cellular level, where females produce ova (large gametes) and males produce sperm (small gametes). This distinction is rooted in biological science and applies across many species, not just humans.

It emphasizes the role of genetics in determining sex from the moment of conception, which is accurate from a biological standpoint.

Limitations:

Intersex Individuals: This definition does not account for intersex conditions where individuals may not fit neatly into binary categories due to variations in sex characteristics. For example, some intersex people might have a combination of male and female biological traits or might not produce typical gametes at all.

Developmental Anomalies: There are rare cases where genetic or developmental anomalies might lead to an individual producing atypical gametes or not producing them at all due to conditions like Turner syndrome (XO) or Klinefelter syndrome (XXY).

(2) Sociocultural Implications:

Binary Focus: The definition strictly adheres to a binary model of sex, which can overlook or marginalize individuals who do not identify with or fit into these binary categories. This can have significant implications for gender identity, legal recognition, and social inclusion.

Legal and Ethical Considerations: In legal contexts, such definitions might be used to determine rights, eligibility for sports, or other gender-specific regulations. However, applying this strictly biological definition could conflict with contemporary understandings of gender identity, potentially leading to issues of discrimination or exclusion.

Medical and Health: From a medical standpoint, this definition can be useful for certain treatments or research focusing on reproductive health. However, it might not provide a complete picture for all health-related issues where sex and gender might intersect differently with health outcomes.

Conclusion: While the rule offers a clear, biologically grounded definition of sex based on gamete production, it has notable limitations, particularly in its application to the spectrum of human biology and identity. It's crucial to complement such biological definitions with an understanding of gender as a social construct and to consider the lived experiences of intersex and transgender individuals when discussing sex and gender in broader societal contexts.

[civil-rights-law]

Kathy Curran at 5 Investigates reports on our case: New evidence in death of young man in back of Massachusetts transport van; Witnesses say their warnings of Sam Dunn’s dire medical condition were ignored. 

This case is scheduled for trial in 2022.

[jimfostercoc]

Prejean: The Death of Innocents: An Eyewitness Account of Wrongful Executions

[kamiartist9]

End Qualified Immunity! These Pigs ain’t above shit! They are not the fucking law! They’re not judge, jury & executioner! They commit a crime they need to be held accountable just like everybody else! FUCK THE POLICE! END QUALIFIED IMMUNITY! ✊🏾 Posted @withregram • @endingqualifiedimmunity 🚨A recent @pewresearch poll reveals around two-thirds of Americans oppose the doctrine of qualified immunity, a once obscure legal concept that shields police officers from accountability and victims of police brutality from seeking justice❗️🚨 . . . The White House has indicated any changes to qualified immunity are a “non-starter,” while former Vice-President @joebiden believes that QI “should not protect officers who abuse their power,” but has yet to propose any concrete policy reforms to #endqualifiedimmunity or even limit the doctrine❗️ . . . #BLACKLIVESMATTER #abolishqualifiedimmunity #justiceforgeorgefloyd #justiceforbreonnataylor #endingqualifiedimmunity #civilrights #civilrightslaw #civilrightslitigation #policebrutality #policemisconduct #policeaccountability #humanrights #congress #progressive #legislation #senate #supremecourt #justice #socialjustice #movementlawyer #civilrightswatch #berniesanders #aoc #ayannapressley #justinamash #lobby4change #VOTEforprogress #endpoliceviolence ⚖️🏛🚨 https://www.instagram.com/p/CDCkQkCpsNw/?igshid=k8bhijko97g1

[chiokedmachi]

U.S. #Court Rules #1964 #CivilRightsLaw Also Protects #LGBT Workers From Bias - @FORTUNE https://apple.news/ACj5E9yiwRwOsEWstbRT67w (at Supreme Court)

[civil-rights-law]

Howard was interviewed by the blog and podcast Not Fake News. Read or listen to Howard’s views on the effects of Trump’s judicial appointments, how civil rights law has changed over the past 40 years, and how we should reimagine police operations.

[civil-rights-law]

The grief, rage, and community organizing regarding the recent murders of more Black people by police officers is creating the possibility of change across the county. As more and more people are convinced that police departments should be defunded, there is also a push for reforms that increase public safety and police accountability without allocating more power to police. One such reform is that police misconduct records must be made public. We recommend this article about the fight to overturn a New York law that shields police officers from scrutiny by keeping their complaint histories secret.

Police secrecy is a problem in Massachusetts as well. Here, although we can typically learn if an officer has a history of complaints such as brutality or false arrest, there is no law that requires a police department to reveal what discipline, if any, the officer received. The reasons for imposing discipline are also kept secret. Without knowing the discipline, the public cannot know if police officers are being held accountable when they violate people’s rights.

[civil-rights-law]

We recommend this article about a very concerning decision by the Ninth Circuit Court of Appeals. During a 2013 raid, police officers stole over $225,000. They reported a significantly smaller amount on the inventory report. The court ruled that the officers are protected by a defense called qualified immunity. Qualified immunity is complicated, but its essential concept is that a police officer is not liable for violating anyone’s rights, unless they violate a right that is “clearly established” and obvious to any reasonable officer. The article says, “Incredibly, even though the judges conceded that ‘virtually every human society teaches that theft generally is morally wrong,’ the Ninth Circuit flatly denied it was ‘obvious’ the officers were in the wrong legally.” Several civil liberties organizations are urging the court to revisit the case.

[civil-rights-law]

Police sergeant Isaac Lambert of Chicago, Illinois, says that his supervisors pressured him to cover up the police shooting of 18-year-old Ricky Hayes. A Chicago officer shot and wounded Hayes although he did not pose a threat. Then the officer tried to bring false charges against Hayes. Sergeant Lambert intervened and ordered that Hayes be released instead of charged. Lambert refused his superiors’ orders to falsify the police report to cover up the illegal shooting. Lambert was removed from the detective bureau and anticipates further retaliation from his fellow officers.

Police officers who shoot civilians for no reason need to be held accountable. When departments cover up police brutality by lying in reports and bringing false charges, police misconduct thrives.

Lambert is quoted as saying, “Always tell the truth and always do what’s right, and don’t ever let some boss, especially someone who sits in an office all day at police headquarters, tell you to put your name on something that’s not right,” he told reporters. “You only have one reputation in life, and make sure that’s one that you can be proud of.”

[civil-rights-law]

On Sunday, September 16, 2018, Howard will provide commentary on the documentary film “Crime + Punishment” at the Newburyport Documentary Film Festival. The film is about the NYPD 12, a group of police officers who filed a class action lawsuit against the City of New York for imposing quotas on police officers, which resulted in arrests without probable cause. The film shows the effect on the police officers for reporting misconduct within their police department. By speaking the truth they faced retaliation for breaking the “code of silence.” While the film is about New York City, similar issues exist in police departments in Massachusetts. Unfortunately police officers who speak out still face retaliation.

[civil-rights-law]

Howard is quoted in this WBUR new story: Janey Promises Transparency, But Withholds Records Of Boston Police Officers Accused Of Misconduct.

After two high-profile scandals involving leaders of the Boston Police Department—Commissioner Dennis White and former patrolman’s union president Patrick Rose—Mayor Kim Janey repeatedly promised to be more transparent about police officers who are accused of misconduct. She has not yet followed through on this promise. WBUR requested public records about officer misconduct over three months ago, and the City has not responded although the public records law requires a response within 10 business days.

The withheld police misconduct records include information about 13 officers who were found to have committed domestic violence. Howard Friedman, other civil rights attorneys, and advocates for sexual assault survivors are quoted as criticizing this secrecy. Laws designed to protect the identity of victims of sexual assault should not be used to protect the identity of police officers accused of sexual assault, particularly when a complaint is sustained against an officer. Access to these police misconduct investigations is necessary for the public to hold police officers accountable.

[civil-rights-law]

Howard is quoted in this article: Watchdog Report: Lawyer calls for probe of Worcester police credibility. The article describes civil rights lawyer Hector Pineiro’s account of widespread misconduct in the Worcester police force, including fabricating evidence and hiding evidence that could be used to prove a suspect’s innocence. In many cases, judges in criminal prosecutions questioned the police officers’ conduct. The well-researched article also discusses cases of police misconduct in Springfield, Lowell, and Boston. Howard provides insight into how police misconduct thrives with a lack of proper supervision and accountability. Too often police officers are willing to violate the constitution in order to make an arrest.

[civil-rights-law]

We recommend watching this video from LowellSun.com: Amid training lapses, video shows handcuffed detainee punched. Video from the Lowell Police Department shows a civilian detention attendant punching a detainee in the head. Our office and the Lowell Sun both obtained this video by making a public records request. Howard is quoted in the article.

Howard is also quoted in this article about the incident: Lowell PD history repeats itself.

[civil-rights-law]

We represent the parents of Sam Dunn, a 29-year-old man who died of an opioid overdose while in an Essex County Sheriff’s Department transport van on January 7, 2016. Earlier this week, we filed a civil rights and wrongful death case alleging that two Essex County correctional officers ignored Mr. Dunn’s need for emergency medical treatment, resulting in his death.

We recommend this news story about the case by 5 Investigates.

Our case alleges that Essex County Officers Patrick Barry and John Nguyen were transporting Mr. Dunn to the Massachusetts Alcohol and Substance Abuse Center (MASAC) in Bridgewater, where a judge had ordered Mr. Dunn civilly committed for substance abuse treatment. The officers saw that Mr. Dunn “seemed to be under the influence of some type of drug or alcohol.” Earlier that day, Mr. Dunn had ingested opiates contained in fingers cut from a surgical glove. Video footage of Mr. Dunn from the Essex County Correctional Facility shows that shortly before he was placed in the transport van, he was struggling to stand and convulsing in apparent seizures.

Mr. Dunn spent the last five and a half hours of his life shackled in the back of the prisoner-transport van, unresponsive, and loudly struggling to breathe. Most of this time was spent in the parking lot outside MASAC, which had anti-overdose medication that would have saved Mr. Dunn’s life. Our case alleges that the officers ignored obvious signs that Mr. Dunn was overdosing and failed to follow policies requiring them to maintain constant visual observation of people in their custody and be alert to issues such as drug use and difficulty breathing.

When the officers finally checked on Mr. Dunn, he was unresponsive and his skin had turned blue. The officers summoned emergency medical help, but Mr. Dunn could not be revived. Had the officers gotten medical care for Mr. Dunn at almost any point during the eight and a half hours they were responsible for his care and custody, Mr. Dunn would have lived.

[civil-rights-law]

Howard Friedman selected as a Massachusetts Super Lawyer

Massachusetts Super Lawyers has recognized Howard Friedman as a Top Rated Civil Rights Attorney in Boston, Massachusetts. Only 5% of attorneys in Massachusetts are designated as Super Lawyers each year. Howard has received this recognition for over 15 years. The multi-factor selection process includes independent research, peer nominations and evaluations, as well as professional achievement in legal practice.

[civil-rights-law]

Howard Friedman is quoted in this article: Lawyers say changes to controversial qualified immunity doctrine would move Mass. into uncharted legal waters. Howard says “he would like the Legislature to pass a stronger civil rights law and eliminate qualified immunity in state courts altogether.”

Qualified immunity is a judge-made law that prevents people from successfully bringing civil rights cases involving false arrest, police brutality, and other complaints against police. For example, qualified immunity permitted police officers to get away with stealing over $225,000 during the search of a person’s home.

Massachusetts lawmakers are currently considering a policing bill that may make changes to the way qualified immunity is applied to state civil rights cases. We don’t believe these changes go far enough. Qualified immunity should be eliminated from the Massachusetts Civil Rights Act. Anything less than that would be counter-productive and result in complicated litigation as the courts struggle to interpret a new statute. If you are concerned about how qualified immunity prevents people from using our state’s civil rights statute, it’s not too late to contact your legislators.