On its first day, the Biden Administration signed seventeen Executive Orders (“EO”), including an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.
Substantive Highlights
- Going in the direction of recent Circuit Courts of Appeals interpreting the Supreme Court’s 2020 Bostock decision, Section 1 of the EO specifically indicates that the Bostock opinion prohibiting discrimination on the basis of sex in employment also applies to all federal laws that prohibit discrimination on “the basis of gender identity or sexual orientation”, including Title IX, the Fair Housing Act, and the Immigration and Nationality Act, “so long as the laws do not contain sufficient indications to the contrary.”
- The EO states that: “It is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation. It is also the policy of my Administration to address overlapping forms of discrimination.”
- Areas of focus mentioned in Section 1 of the EO
- Overlapping forms of discrimination (E.g., Black American who has a disability or is discriminated on the basis of transgender status)
- Finds “unconscionably high” rate of workplace discrimination, homelessness, and violence against Black Americans who identify as transgender
- School facilities, including bathrooms and locker rooms
- Children’s access to athletic opportunities
- Equal employment
- Housing
- Healthcare
Procedure for Review of Compliance
- The EO directs each federal agency head “as soon as practicable” to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that implicate Title VII and sex discrimination to determine if they are consistent with Section 1 of the order.
- In doing this review, the Agency head must consider whether to “revise, suspend, or rescind such agency actions, or promulgate new agency actions” consistent with Section 1 of the order or create new rules to make Section 1 effective.
- There is a 100 day time frame (April 30) to accomplish this review and make a plan to carry out those actions, in consultation with the Attorney General as appropriate.
Based on this EO’s highlighted areas of focus in education, and the EO’s explicit application of Bostock to Title IX, we can expect more developments soon in how federal agencies, including the Department of Education, address discrimination in education programs and activities.
