As anticipated by our prior post, President Biden issued an executive order on his first day in office addressing gender identity and sexual orientation discrimination. In doing so, President Biden is taking aim at dismantling the recently published Department of Education’s internal memorandum, which concluded Title IX’s protections against discrimination on the basis of “sex” do not generally extend to sexual orientation or gender identity.
In the order, President Biden proclaimed that the U.S. Constitution and federal anti-discrimination laws embody the principle that “[e]very person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.” The order commits federal agencies to the policy of extending the definition of “sex” in anti-discrimination laws to include gender identity and sexual orientation “so long as the laws do not contain sufficient indications to the contrary.” In doing so, President Biden seeks to extend the holding of Bostock v. Clayton Cnty., 590 U.S. ___ (2020) to all federal anti-discrimination laws, not just Title VII. The order expressly extends this definition to Title IX and directly addresses some of Title IX’s more controversial topics, including “access to the restroom, the locker room, or school sports” on the basis of sexual orientation or gender identity.
To implement this policy, the order tasks the head of each federal agency to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that may be inconsistent with the policy of expanding the definition of “sex” to prohibit sexual orientation or gender identity discrimination. After this review, the agencies must consider whether 1) “to revise, suspend, or rescind such agency actions, or promulgate new agency actions” and 2) “there are additional actions that the agency should take to ensure that it is fully implementing the policy.” The agencies are tasked to begin this review “as soon as practicable and in consultation with the Attorney General,” as well as to consider making such changes more permanent via the Administrative Procedure Act’s rulemaking process.
Each agency has until Friday, April 30, 2021 to “develop, in consultation with the Attorney General, as appropriate, a plan to carry out actions” to implement the actions identified by the review process. We will continue to update our readers on all further developments as the Department of Education begins its review process and implements this new executive order.