January 4, 2021

Re: Executive Order 13950 Combating Race and Sex Stereotyping

We hope you enjoyed your holidays and were able to recover from 2020—the year that seemed to keep on giving whether we welcomed it or not. It was a challenging year, for sure, from COVID-19 to continued police killings of Black men to President Trump’s September 22 Executive Order 13950 banning “Racism and Sexism Stereotyping.” 

We’re encouraged that 2020 ended on a bright note with this hopeful news: On December 22, the San Jose Division of the US District Court granted a partial, nationwide, immediate injunction against Executive Order 13950. The initial lawsuit and injunction were filed by Santa Cruz Lesbian and Gay Community Center, et al. against Donald J. Trump.

The partial injunction only affects Sections 4 and 5 of the Executive Order. Importantly, these are the sections that impact federal contractors and grantees. While we encourage you to check your own sources, our understanding is that Federal Contractors will not need to:

  • Include provisions in contracts or subcontracts regarding workplace training on the concepts as outlined in the Executive Order
  • Modify or drop any words like “white privilege”
  • Provide notice of existing training commitments to the Department of Labor 
  • Include language in subcontracts or purchase orders binding other subcontractors to the terms of the Executive Order

Additionally:

  • Contracts cannot be canceled, terminated or suspended for failure to comply
  • Contractors and subcontractors cannot be deemed ineligible for contracts based on their training programs
  • The hotline to collect information on noncompliance is not in use
  • Requests for Information will not be published
  • Grant programs will not require recipients to certify compliance with the Executive Order

For federal contractors and subcontractors, these changes nullify the immediate threat of the Executive Order posed to advancing inclusion and diversity in their organizations. Unfortunately, government agencies were not included in the injunction, though it is widely expected the Biden administration will rescind the Executive Order for government agencies as well.

As you may recall, on October 29, 2020, a separate lawsuit was filed against the Executive Order by the NAACP Legal Defense Fund (LDF) on behalf of the National Urban League and the National Fair Housing Alliance. At that time, they only filed the lawsuit and did not file for an immediate injunction. This suit was filed in the District of Columbia Federal District court. 

However, in December, before the California injunction, the NAACP LDF was also considering filing for a separate injunction. As part of that effort, the NAACP LDF asked WMFDP to file a Declaration in support of the injunction. 

The NAACP LDF was specifically interested in documentation of the impact of the Executive Order on us and our clients (pretty significant). When the California injunction was issued, the NAACP LDF put their injunction on hold pending any other rulings or push back from the Trump administration. They may still file, and we will continue to monitor and share other news as the EO is challenged, struck down or rescinded.

Even though the Biden administration is highly likely to rescind this Executive Order, we feel an injunction was and is essential. This Executive Order is a direct attack on free speech and due process. It challenges the premise and history of racial and gender discrimination in the U.S. and attempts to suggest that systemic advantage and privilege are not real for the many millions of citizens whose lived experience would suggest otherwise. By doing so, the Order reinforces and encourages systemic racism and sexism. The injunction, then, is not just a moral rebuke of the Executive Order but, significantly, a legal one as well.

We will continue to track and support all activities that challenge and dismantle Executive Order 13950 and keep you informed.

Wishing each of you Peace and Rest coming into this New Year!