General Services Administration FAR Class Deviation Regarding Affirmative Action and Gender Ideology

As we discussed here, on January 21, 2025, President Trump issued Executive Order (EO) 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” This EO revoked EOs 11246 and 13672 issued by prior administrations that required, among other things, for federal contractors and subcontractors to create and monitor affirmative action programs to support minorities and women and advance equal opportunity. On January 20, 2025, President Trump also issued EO 14168 titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which addressed, in part, the administration’s concerns about the use of “gender identity” by the federal government and sets forth the administration’s direction that this phrase should not be used as a synonym for “sex” as an identifiable category. The Trump Administration has now taken further action to implement its executive orders in federal contracting.

On February 15, 2025, the United States General Services Administration (GSA) issued Class Deviations impacting Federal Acquisition Regulations (FAR) clauses in GSA contracts. This article is focused on one that impacts affirmative action programs and has a stated prohibition of the use of “gender identity” by federal contractors; this article does not cover the full range of contractual impacts arising out of GSA’s actions.

GSA Class Deviation CD-2025-04 addresses the enforcement of certain FAR requirements that are specifically referenced or incorporated into current federal contracts and subcontracts. More specifically, the Class Deviation strikes from enforcement and uses the FAR requirement related to affirmative action compliance under EO 11246 (Equal Opportunity) in GSA contracts – such clauses will not be used or enforced going forward. The Class Deviation further instructs contracting officers to amend solicitations and modify existing contracts with more than six months left to reflect these changes.

For existing contracts or orders in the final period of performance, Class Deviation CD-2025-04 directs contracting officers to provide a notification to federal contractors and subcontractors. The notice must state:

As of February 15, 2025, FAR clauses and provisions covered under E.O. 11246, Equal Employment Opportunity, will no longer be enforced. Therefore, contractors and their subcontractors will not be held accountable for applying the FAR clauses or provisions outlined in FAR subpart 22.8 - Equal Employment Opportunity or the associated provisions and clauses prescribed at FAR 22.810.

In addition, contractors will no longer be required to comply with the System for Award Management (SAM) representation requirements based on these provisions and clauses. Examples include:

• FAR 52.222-25, Affirmative Action Compliance; and 
• FAR 52.212-3(d), Offeror Representations and Certifications – Commercial Products and Commercial Services.

As of February 15, 2025, all uses of the term “gender identity” are not to be recognized or used prospectively by Federal contractors.

This notification does not affect:

• Any FAR subparts that are based on statute or are not covered by E.O. 11246 such as: 
  • FAR subparts 22.13, Equal Opportunity for Veterans and its related clauses and provisions; and 
  • FAR subpart 22.14, Employment of Workers with Disabilities. 
• Existing U.S. laws on civil rights, nondiscrimination, or any laws that generally apply to a company regardless of whether it is a government contractor.

The first piece of this notice is straightforward, implementing the revocation of EO 11246. The impact of the second part of the notice is much less clear – it purports to require that federal contractors no longer use the term gender identity in one clause, while then recognizing that federal contractors must comply with existing laws that protect individuals based on their gender identity, such as Title VII (as currently interpreted) and various state and local laws.

Meaningful questions remain for federal contractors and subcontractors.

Practical Impact

As noted, Class Deviation CD-2025-04 brings federal contracts governed by the GSA one step closer to full compliance with President Trump’s EOs. As required by the EOs, all federal contractors and subcontractors should discontinue their use of FAR-based affirmative action programs related to minorities and women. The Class Deviation provides federal contractors and subcontractors with assurances that their discontinuance of such programs will not lead to claims of non-compliance with their GSA contract terms. Note, however, that neither the EOs nor the Class Deviation impacts any state law affirmative action requirements applicable to state contracts, nor do they impact – as explicitly stated in the required notice above – the requirement for affirmative action related to veterans and individuals with disabilities.

As for the use of the phrase “gender identity,” the large majority of federal contractors should still implement and enforce policies preventing discrimination or harassment against individuals based on their gender identity, as doing so complies with Title VII. Even if the interpretation of Title VII changes, many federal contractors will remain subject to state or local laws prohibiting discrimination or harassment based on gender identity.

What to Expect Next

Going forward, several additional actions can be expected. In addition to the GSA, other federal agencies will implement their own deviations to the FAR similar to GSA’s Class Deviation CD-2025-04 and take actions to end affirmative action requirements in federal contracting. This will likely be followed by formal rulemaking in the FAR to effectuate the administration’s direction uniformly.

In furtherance of President Trump’s EO on “Ending Illegal Discrimination,” it remains likely that additional FAR changes are forthcoming, including new contract language requiring government contractors to make a certification of compliance with all applicable federal anti-discrimination laws with the risk of enforcement under the False Claims Act (FCA) for alleged false certifications. Legal actions may be brought under the FCA directly by the Department of Justice or employee whistleblowers once these changes are in effect.

The GSA (and other agencies) will be amending solicitations to effectuate its new policy direction. As such, there may be a delay in award decisions as a result (i.e., awards may get pushed to the right).

More broadly, the Trump administration has communicated its intent to adopt commercial practices in government contracting and to reform defense acquisition. As such, additional requirements unique to government contracting or contrary to the administration’s policy objectives could be stricken from federal regulations in the future. Additional policy changes may be proposed and quickly implemented on an interim basis, to be followed by formal rulemaking where appropriate.

Ice Miller also has learned that it is likely that the GSA will be issuing a second supplement to CD-2025-04 soon.  When posted, it can be found here.

Ice Miller will be hosting webinars and continuing to publish topical alerts related to these and other changes being implemented by the Executive Branch. Please stay tuned for future developments.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.