On Jan. 20, President Joe Biden signed an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order states that all persons should receive equal treatment under the law, no matter their gender identity or sexual orientation. Specifically, the Executive Order sets forth the following policy statements:

  • Every person should be treated with respect and dignity without regard to who they are or whom they love.
  • Children should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.
  • Adults should be able to earn a living without worrying about being fired or demoted because of who they go home to or whether their dress conforms to sex-based stereotypes.
  • People should have access to healthcare and be able to put a roof over their heads without being subjected to sex discrimination.

The Order bases these policy statements in Title VII of the Civil Rights Act of 1964 and the Supreme Court’s recent ruling on that law, Bostock v. Clayton County. In the Bostock case, the Supreme Court held that Title VII’s prohibition against discrimination “because of…sex” covers discrimination on the basis of gender identity and sexual orientation. Under Bostock’s reasoning, the order explains, laws that prohibit sex discrimination – including Title IX of the Education Amendments of 1972 and its accompanying regulations – prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.

The Order’s policy statements stand in direct contrast with the prior administration’s stance on legal protections for students based on sexual orientation and gender identity. Under the prior administration, the Department of Justice filed Statements of Interest in pending litigation, and the Department of Education issued documents taking the position that Title IX’s prohibition of sex-based discrimination in educational programs did not prevent schools from excluding students from athletic teams based on gender identity. The policy statements outlined in the new Executive Order reject the previous administration’s assertion that the Bostock decision does not apply to the agency’s interpretation of Title IX.

The Executive Order instructs the head of each agency that administers statutes or regulations that prohibit sex discrimination to review existing orders, regulations, guidance documents, policies and programs to determine whether changes are necessary to “fully implement statutes that prohibit sex discrimination and the policy set forth in [the order.]”

Stay tuned for additional information about changes in policy, regulation, guidance and enforcement related to discrimination on the basis of sexual orientation or transgender status. OSBA’s division of legal services will continue to provide updates as they are available.

Posted by Sara C. Clark on 1/29/2021