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grown, often making OFCCP’s authority redundant and imposing a second regulatory agency under whose rules businesses must operate. In addition, under EO 11246, the President and DOL can force a huge swath of American employers to comply with rules and regulations based on novel antidiscrimination theories (such as sexual orientation and gender identity theories) that Congress had never imposed by statute.

• Rescind EO 11246. The President should eliminate OFCCP by simply rescinding EO 11246. Federal contractors would still be bound by statutory nondiscrimination law but would no longer work under overlapping regimes. (Contractors’ residual obligations under Section 503 of the Rehabilitation Act and Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) could be enforced by EEOC or DOL.) Contractors also would be less subject to the changing political whims of a President that might impose significant new costs or burdens on the contractors.

Sex Discrimination. The Biden Administration, LGBT advocates, and some federal courts have attempted to expand the scope and definition of sex discrimination, based in part on the Supreme Court’s decision in Bostock v. Clayton County. Bostock held that “an employer who fires someone simply for being homosexual or transgender” violates Title VII’s prohibition against sex discrimination. The Court explicitly limited its holding to the hiring/firing context in Title VII and did not purport to address other Title VII issues, such as bathrooms, locker rooms, and dress codes, or other laws prohibiting sex discrimination. Notably, the Court focused on the status of the employees and used the term “transgender status” rather than the broader and amorphous term “gender identity.”

• Restrict the application of Bostock. The new Administration should restrict Bostock’s application of sex discrimination protections to sexual orientation and transgender status in the context of hiring and firing.

• Withdraw unlawful “notices” and “guidances.” The President should direct agencies to withdraw unlawful “notices” and “guidances” purporting to apply Bostock’s reasoning broadly outside hiring and firing.

• Rescind regulations prohibiting discrimination on the basis of sexual orientation, gender identity, transgender status, and sex characteristics. The President should direct agencies to rescind regulations interpreting sex discrimination provisions as prohibiting discrimination on the basis of sexual orientation, gender identity, transgender status, sex characteristics, etc.