For educational institutions, one of President Joe Biden’s inaugural Executive Orders ushers in yet another significant, multi-faceted, complicated policy change for educational institutions. On his very first day as President, on 20 January 2021, President Biden issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” (President Biden’s Executive Order).

Background on the “Back-and-Forth”

President Biden’s Executive Order constituted another “shift” in the direction given to schools, so it is helpful to have some background. Under President Barak Obama’s administration, on 13 May 2016 via a “Dear Colleague” letter, the U.S. Department of Education and the U.S. Department of Justice issued joint “significant guidance” declaring that the Title IX prohibition against sex discrimination encompassed “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” By declaring the Dear Colleague letter “significant guidance,” although they claimed that they were not creating new laws, both federal entities made clear that in determining legal compliance with the law, they were going to be evaluating educational institutions based on their inclusion of gender identity and transgender status as protected classes. In sum, the agencies directed that “a school must not treat a transgender student differently from the way it treats other students of the same gender identity” or funding could be at risk.

Three months later, a federal district court in Texas stopped the enforcement of the 13 May 2016 guidance holding that “sex” unambiguously refers to biological sex and that the 13 May 2016 guidance was “legislative and substantive.” Nine months later on 22 February 2017, the U.S. Department of Education and the U.S. Department of Justice under President Donald Trump’s administration issued a joint “Dear Colleague” letter rescinding the guidance in the 13 May 2016 “Dear Colleague” letter. Now, President Biden has reversed the Trump administration’s 13 May 2016 “Dear Colleague” letter by Executive Order.

Summary of President Biden’s Executive Order

Relying on precedence set in the Supreme Court’s Bostock v. Clayton County case, President Biden’s Executive Order provides that for purposes of Title IX and its implementing regulations, the prohibition of discrimination based on sex includes gender identity or sexual orientation. President Biden also directs federal agency heads to evaluate revisions, suspensions, or possible revocations of policies to align with his Executive Order. In sum, for all of the ways schools have sought to prohibit and address discrimination based upon sex, i.e. being male or female, schools will now have to prohibit and address discrimination based upon a student’s sex, i.e. male, female, or any other gender identity.

Implications for Schools

Implementing President Biden’s Executive Order for schools requires a more comprehensive, yet nuanced evaluation than what may be expected for schools. Schools treating students consistent with the student’s gender identity seems pretty straightforward. If a biological male identifies as a female, then the school would treat that student as a female in all circumstances, and if a biological female identifies as a male, then the school would treat that student as a male in all circumstances. This all-encompassing, categorical summary is likely how the bulk of schools interprets the requirements. However, treating students consistent with that student’s gender identity may not be so cut and dry. “Gender identity” commonly refers to a person’s internal sense of gender or sense of self. There are over 100 genders, and the variety of gender identities continues to evolve, i.e. a person who has no sense of gender (agender), a gender that shares qualities with water (hydrogender); a person who is combined male and female (androgyne); a person who switches between two genders or experience genders simultaneously (bigender), etc. For the part of the “gender identity” definition that covers a person’s “sense of self,” there are individuals who “identify” as animals and fictional characters. Due to the wide range of possibilities for students’ subjective sense of themselves, it will be difficult for schools to avoid discrimination because of the wide-ranging, ever-evolving nature of gender identity.

There may also be circumstances where educators may find it difficult to treat a student in accordance with the student’s gender identity without causing disruption. For example, if a student identifies as a dog, and wants to be identified with a “bark” rather than a name and crawl around on the student’s hands and feet, that could potentially cause a disruption. There may also be students with subversive intent who will use the fluidity of gender identity to try to take advantage of certain access in a way that may invite potential liability on the school. There is also litigation that schools should be prepared to defend against for individuals asserting First Amendment freedom of religion and other violations in having to comply with President Biden’s Executive Order.

These are just a few examples of the types of scenarios that schools should be prepared to navigate, as the implementation of the Executive Order will assuredly present a host of challenges for schools