Does President Biden’s Executive Order on Gender Identity and Sexual Orientation Discrimination Overrule OCR’s Recent Guidance?

Pullman & Comley - School Law

Pullman & Comley - School Law

As discussed in a prior post, OCR under the former President went to great lengths to interpret Bostock v. Clayton (which established that discrimination against someone for being transgender or homosexual was sex discrimination under Title VII’s prohibition against workplace sex discrimination) as actually requiring school districts to discriminate against transgender students in schools under Title IX by prohibiting them from using personal spaces such as bathrooms and locker rooms of their gender identity and requiring them to play on sports teams of their birth sex.  Before taking office, President Biden had already signaled his intention to withdraw that guidance.  Thus, on his campaign website President Biden expressed one of his goals as “Guaranteeing transgender students have access to facilities based on their gender identity.”  He further indicated that on his first day in office, he would reinstate the Obama-Biden guidance “which will restore transgender students’ access to sports, bathrooms, and locker rooms in accordance with their gender identity.”

On his first day in office, President Biden issued an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.  The Executive Order, however, does not refer to Title IX by name.  It does, however, make a strong statement that his policy moving forward will be that all persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.  And, it specifically states that children should be able to learn without worrying about access to restrooms, locker rooms or school sports.  The Order then directs the head of every federal agency to review “as soon as practicable” all existing orders, regulations, guidance documents, policies, programs or other agency actions that were promulgated or administered by the agency under any statute or regulation prohibiting sex discrimination that may be inconsistent with the policy statement of nondiscrimination against individuals based on their gender identity and/or sexual orientation.  Although not mentioned by name, this seems to encompass Title IX.  It gives the agency heads 100 days to develop a plan to carry out any actions the agency identifies.

Subsequent to the issuance of the Executive Order, OCR quietly removed from its website the January 8, 2021 memorandum claiming that Title IX did not protect students based on their gender identity or sexual preference.  Thus, as predicted previously, the impact of the memorandum should indeed be short lived.  With the removal of the memorandum, and with the support of the Executive Order, it appears likely that OCR will once again be investigating claims of discrimination on the basis of gender identity and sexual preference in schools.  It remains to be seen how this will play out in the courts.  In Connecticut, for example, there is still the outstanding case of Soules et al v. Connecticut Association of Schools, Inc. et al, which asks the court to decide whether the CIAC and various school districts violated Title IX by allowing students to play on sports teams that match their gender identity. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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