Evolution of the Issue
Title IX, enacted in June of 1972, is a 37-word, broad-based, anti-gender-discrimination statute mandating equality for women and girls in education and athletics programs that receive federal financial assistance. Throughout its near 50 years on the books, the law has been applied to areas including, but not limited to, sports participation, gender inequities between athletic programs, sexual harassment, access to school facilities, STEM programs, opportunities for higher education, and other pervasive yet insidious forms of gender discrimination.
Over the course of the last 28 years, one of the most hotly-contested questions regarding the interpretation and application of Title IX with regard to transgender students has been whether the definition of the word “sex” in the statute refers to gender at birth or gender identity. Beginning early in the two terms of President William Clinton’s presidential administration, continuing through the two terms of President George W. Bush’s administration, and extending through the two terms of President Barack Obama’s tenure in office, a clear trend emerged in the directives issued by the Department of Education and its Office for Civil Rights – supported by federal court rulings nationwide – that the word sex in Title IX references gender identity, not gender at birth.
However, over the course of the past four years, that ongoing progression of increased protections for transgender individuals, students and student-athletes came to a halt as the now-outgoing administration erased such safeguards in schools, universities, sports programs, health care, federal employment, the military, federal prisons, homeless shelters and numerous other aspects of American life.
On the evening of January 20, 2021, just hours after the inauguration of the 46th President of the United States, with the virtual inaugural ball taking place just over a mile away from the White House on the steps of the Lincoln Memorial under the watchful gaze of the Great Emancipator, with his most famous writings on the core American value of equal protection under the law illuminated by spotlights on the interior walls of the Memorial, Joseph R. Biden Jr. sat at his desk in the oval office signing a series of Executive Orders, including one explicitly reinstating protections against discrimination for LGBTQ individuals, students and student-athletes.
Executive Order 13988
The following is the title and full-text of the Executive Order. A digital version is available here and its Federal Register Citation is 86 FR 7023 Document Number 2021-01761.
Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
January 20, 2021 • Presidential Actions
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. Every 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. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.
Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.
These principles are reflected in the Constitution, which promises equal protection of the laws. These principles are also enshrined in our Nation’s anti-discrimination laws, among them Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.). In Bostock v. Clayton County, 590 U.S. ___ (2020), the Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation.
Under Bostock‘s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.
Discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals, and it often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability. For example, transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.
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.
Sec. 2. Enforcing Prohibitions on Sex Discrimination on the Basis of Gender Identity or Sexual Orientation.
(a) The head of each agency shall, as soon as practicable and in consultation with the Attorney General, as appropriate, review all existing orders, regulations, guidance documents, policies, programs, or other agency actions (“agency actions”) that:
(i) were promulgated or are administered by the agency under Title VII or any other statute or regulation that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations; and
(ii) are or may be inconsistent with the policy set forth in section 1 of this order.
(b) The head of each agency shall, as soon as practicable and as appropriate and consistent with applicable law, including the Administrative Procedure Act (5 U.S.C. 551 et seq.), consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in section 1 of this order.
(c) The head of each agency shall, as soon as practicable, also consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy set forth in section 1 of this order. If an agency takes an action described in this subsection or subsection (b) of this section, it shall seek to ensure that it is accounting for, and taking appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability.
(d) Within 100 days of the date of this order, the head of each agency shall develop, in consultation with the Attorney General, as appropriate, a plan to carry out actions that the agency has identified pursuant to subsections (b) and (c) of this section, as appropriate and consistent with applicable law.
Sec. 3. Definition. “Agency” means any authority of the UnitedStates that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
JOSEPH R. BIDEN JR. THE WHITE HOUSE, January 20, 2021
The Impact of the Executive Order
The restoration of the policy that the definition of the word “sex” in Title IX refers to “gender identity” will likely affect the outcome of OCR complaints, federal lawsuits and proposed/enacted state laws related to the sports participation rights of transgender students.
A complaint filed with the OCR against the Connecticut Interscholastic Athletic Conference (CIAC) and six school districts challenging a policy that permits transgender student-athletes to compete based on their gender identity, along with a parallel federal lawsuit, Soule et al v. Connecticut Association of Schools, are now likely to be resolved in favor of the defendants. A federal lawsuit underway in Idaho, Hecox v. Little, dealing with the legal validity of a state law limiting the right of transgender females to compete on sports teams based on gender identity will likely result in the statute being struck down, an outcome that will probably have a similar impact on such state laws proposed or already enacted in more than a dozen states.
The Executive Order also reinforces the rulings by U.S. Courts of Appeal in G.G. v. Gloucester County School Board (4th Circuit), Adams v. St. Johns County School Board (11th Circuit), and Doe v. Boyertown Area School District (3rd Circuit), that transgender students and student-athletes should be permitted to use the restrooms, locker rooms and shower rooms consistent with their gender identity and that the arguments proffered by objectors that the privacy rights of cisgender (non-transgender) students are violated by such policies are based on stereotypes and false analogies.
For instance, the written opinion in the Adams case noted that “Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead he argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view. The School Board has demonstrated no substantial relationship between excluding [Adams] from the communal [facilities] and protecting student privacy.”
“After extensive evidence was presented at trial, the District Court found that [Adams] presence in the boys’ [facilities] does not jeopardize the privacy of his peers in any concrete sense. When [he] uses the restroom, he enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves. The School Board received no reports of privacy breaches [during Adams’ use of boys’ facilities]. Indeed, the School Board could not produce any complaints of untoward behavior involving a transgender student. Nor could the School Board point to any incidents across the country in which allowing transgender students to use [school facilities] according to their gender identity compromised other students’ privacy.”
Update: On February 23, 2021, consistent with the Equal Protection principles explicitly addressed in Executive Order 13988, the Biden administration withdrew the federal government’s support established by the previous administration for the plaintiffs in the above-mentioned lawsuit against the CIAC, thereby reinforcing and strengthening the association’s anti-discrimination policies designed to protect all student-athletes, including transgender students, wishing to participate in education-based sports programs.
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.