Within hours of his inauguration on January 20, 2021, President Joe Biden signed an Executive Order (EO) on “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The order establishes the new administration’s policy prohibiting discrimination based on gender identity and sexual orientation and directs federal agencies to take affirmative steps to secure the rights.
President Biden’s EO commits to enforcing the holding of Bostock v. Clayton County throughout all federal agencies. In Bostock, the U.S. Supreme Court found the prohibition on discrimination “because of … sex” in Title VII of the Civil Rights Act of 1964 covers bias based on gender identity and sexual orientation.
After Bostock was decided, several federal agencies, including the U.S. Department of Education (DOE) in interpreting Title IX of the Education Amendments Act of 1972, sought to distinguish Title VII in an effort to avoid applying the Court’s ruling to certain controversial matters, such as sex-separated bathrooms, locker rooms, and athletic teams. Under the previous administration, the DOE refused to recognize Bostock’s applicability to those kinds of situations.
What New EO Covers
Notably, the new EO specifically addresses student access to restrooms, locker rooms, and sports and confirms the Bostock holding applies to Title IX to prohibit discrimination against transgender individuals in school settings. It also orders the DOE to officially reverse the policies affecting the rights of transgender and gender-nonconforming students.
The EO also explicitly confirms Bostock’s applicability to any other federal law prohibiting sex discrimination, including the Fair Housing Act, Section 412 of the Immigration and Nationality Act, and the Affordable Care Act. Under the order, federal agency heads must:
- Reevaluate their policies relating to sex discrimination, including each agency’s implementing regulations, in light of the Bostock decision and make changes consistent with the EO’s instructions within 100 days; and
- Develop a plan to implement, revise, or rescind policies to conform to the statutes that prohibit sex discrimination consistent with the Biden administration’s new policy.
President Biden’s EO represents a return to Obama-era policies aimed at protecting LGBTQ+ persons from discrimination. Although Bostock addressed Title VII, the order directs the holding to apply to all federal laws prohibiting discrimination based on “sex,” including Title IX and its implementing regulations related to sex-separated bathrooms, locker rooms, and athletic teams.
The EO marks a change for states that haven’t already passed such laws. In addition, it presents an area of potential litigation in more than a dozen states where lawmakers have proposed, or previously passed, legislation restricting participation in athletics and/or gender-confirming health care for transgender minors.
Here are steps to take if you’re subject to federal law as an employer, public school, university, college, health insurer, healthcare professional, or landlord (among others):
- Review your policies and procedures to ensure they’re aligned with Bostock and the EO;
- Take action to address any discrimination or harassment based on sexual orientation, gender identity, and gender expression; and
- Ensure the policies are applied equitably to prevent discrimination against the LGBTQ+ community.
Johanna G. Zelman, Nancy Van Der Veer Holt, and Melissa M. Castillo are attorneys with FordHarrison LLP. You can reach them at firstname.lastname@example.org, email@example.com, or firstname.lastname@example.org.