Federal Agencies Directed to Facilitate Participant Access to Funds That Invest in Alternative Assets

On August 7, 2025, President Trump signed an executive order (E.O.) titled "Democratizing Access to Alternative Assets for 401(k) Investors." The E.O. is intended to make it easier for participants in private retirement plans to invest in "alternative assets," including private market investments, investment vehicles containing digital assets, and real estate, among others. According to the E.O., while many "wealthy Americans, and Government workers" have access to and invest in a number of alternative assets, the vast majority of the more than 90 million Americans who participate in employer-sponsored defined-contribution plans "do not have the opportunity to participate, either directly or through their retirement plans, in the potential growth and diversification opportunities associated with alternative asset investments." The E.O. aims to increase access to funds that include investments in alternative assets and "relieve the regulatory burdens and litigation risk that impede American workers' retirement accounts from achieving the competitive returns and asset diversification necessary to secure a dignified, comfortable retirement." 

Pursuant to the E.O., the Secretary of Labor is directed, within 180 days, to reexamine Department of Labor (DOL) guidance in connection with making asset allocation funds that include alternative investments available to participants and, as appropriate, "to clarify the [DOL's]s position on alternative assets and the appropriate fiduciary process associated with offering asset allocation funds containing investments in alternative assets under ERISA." The E.O. also requires the Secretary to "propose rules, regulations, or guidance... that clarify the duties that a fiduciary owes to plan participants under ERISA when deciding whether to make available to plan participants an asset allocation fund that includes investments in alternative assets," which may include "appropriately calibrated safe harbors." 

The E.O. references "[b]urdensome lawsuits that seek to challenge reasonable decisions by loyal, regulated fiduciaries, and stifling [DOL] guidance," which it claims have hindered participants of employer-sponsored retirement plans from investing in alternative assets. When reexamining current DOL guidance and proposing new rules, regulation, or guidance, the Secretary is directed to "prioritize actions that may curb ERISA litigation that constrains fiduciaries' ability to apply their best judgment in offering investment opportunities to relevant plan participants."  

The E.O. additionally calls for the Secretary to consult with the Secretary of the Treasury, the Securities and Exchange Commission (SEC), and other federal regulators to carry out the policies in the E.O. and with respect to potential parallel regulatory changes at other agencies. The SEC is separately directed to consider ways to facilitate participants' access to alternative assets.

Although the E.O. does not make express reference to cryptocurrency, the Fact Sheet accompanying the E.O. references DOL's May 2025 rescission of Biden administration guidance regarding the inclusion of cryptocurrency in a plan's investment menu and states, "President Trump promised to make the United States the 'crypto capital of the world,' emphasizing the need to embrace digital assets to drive economic growth and technological leadership."

On August 12, 2025, DOL announced it was rescinding a December 2021 supplemental statement to a 2020 Employee Benefits Security Administration (EBSA) Information Letter regarding the use of private equity (PE) investments in designated investment alternatives made available to participants and beneficiaries in ERISA-covered individual account plans. The Biden DOL issued the supplemental statement "to ensure that plan fiduciaries do not expose plan participants and beneficiaries to unwarranted risks by misreading the [Information Letter] as saying that PE—as a component of a designated investment alternative—is generally appropriate for a typical 401(k) plan."

Tenth Circuit Upholds Oklahoma Ban on Gender Transition Procedures for Minors

On August 6, 2025, the Court of Appeals for the Tenth Circuit upheld the constitutionality of Oklahoma Senate Bill 613 (SB 613), which prohibits healthcare providers from "provid[ing] gender transition procedures" to anyone under 18 years old to treat gender dysphoria, thereby affirming the district court's denial of a preliminary injunction to enjoin the law based on the plaintiffs' failure to show a likelihood of success on the merits. Poe v. Drummond, No. 23-5110 (10th Cir). 

SB 613 defines gender transition procedures to include "surgical procedures that alter or remove physical or anatomical characteristics or features that are typical for the individual's biological sex" and "puberty-blocking drugs, cross-sex hormones, or other drugs to suppress or delay normal puberty or to promote the development of feminizing or masculinizing features consistent with the opposite biological sex." Okla. Stat. Ann. tit. 63, § 2607.1 (A)(2)(a)(1)-(2). SB 613 does not prohibit mental health counseling, medication to treat depression, anxiety, precocious puberty, or delayed puberty, services provided for those born with ambiguous or incomplete genitalia, or both male and family anatomy, treatments of any infection caused by the performance of gender transition procedures, or treatments for any injury or illness that would place an individual in imminent danger of death. Id. § 2607.1 (A)(2)(b)(1)-(6). 

The plaintiffs in Poe are minors diagnosed with gender dysphoria who have been prescribed puberty blockers and cross-sex hormones and the parents of those minors. The plaintiffs' 2023 complaint includes allegations that SB 613 violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment and sought a preliminary injunction to bar the law's enforcement, among other relief. 

In addressing the plaintiffs' Equal Protection Clause claim, the Tenth Circuit panel relied heavily on the Supreme Court's decision in United States v. Skrmetti, 605 U.S. ---, 145 S. Ct. 1816 (2025), which upheld Tennessee Senate Bill 1 (SB 1), a similar law that the panel found to be "functionally indistinguishable" from SB 613. Citing Skrmetti, the court rejected the plaintiffs' argument that SB 613 discriminates on the basis of sex and/or transgender status, which would subject the law to intermediate scrutiny, but rather concluded that because it regulates on the basis of age and medical use, only a rational basis review is appropriate. The Tenth Circuit panel determined there was a rational basis for the law because Oklahoma has an "interest in safeguarding the physical and psychological well-being of minors in light of the debate among medical experts about the risks and benefits associated with treating a minor's gender dysphoria with gender transitioning procedures." The court cited "[t]he potential health risks related to gender transition procedures" as providing a rational basis for SB 613. 

The Tenth Circuit rejected the plaintiffs' argument based on Bostock v. Clayton County, 590 U.S. 644 (2020), that SB 613 discriminates on the basis of sex because it discriminates based on a person's transgender status. The court relied on Skrmetti as foreclosing this argument and held that Bostock did not control because SB 613, like SB 1, "does not turn on the minor's transgender status," but "on the minor's medical diagnosis." 

The Tenth Circuit also found that the district court properly denied a preliminary injunction with respect to the plaintiffs' substantive due process claim, which the court interpreted as a claim of "whether parents have the right to access gender transition procedures for their children." The court reasoned that there is a "strong presumption of validity" as to health and welfare laws and that "individuals do not have an affirmative right to specific medical treatments the government reasonably prohibits," "regardless of the parent-child relationship." The court concluded that "[t]he right for parents to access gender transition procedure for their children is not a fundamental one," so rational basis review is warranted. 

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