On January 20th, 2021, President Joseph R. Biden signed Executive Order (EO) 13988 into law. The EO, as issued, expands sex discrimination prohibitions under both Title VII and Title IX. Specifically, the EO states sex discrimination can include discrimination on the basis of gender identity and sexual orientation. EO 13988 was one of the many Executive Orders that President Biden signed during his first week in office.
Overview of EO 13988
As a catalyst for creating the EO, Biden cited the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia. Earlier, the court ruled that Title VII’s prohibition on sex discrimination covers discrimination on both gender identity and sexual orientation. The EO also states that the reasoning in Bostock applies to all laws that prohibit sex discrimination. That would include Title IX of the Education Amendments of 1972. Accordingly, sex discrimination under Title IX now prohibits discrimination on the basis of gender identity and expression and sexual orientation. The EO also directs all federal agencies to review and revise all existing rules and actions that prohibits sex discrimination. After that review, the agencies need to correct any inconsistencies that may conflict with EO 13988. Those revisions must occur by April 30, 2021.
Historical Context of EO 13988
The creation of EO 13988 illustrates a return to transgender rights policies established by President Barack Obama’s administration. In 2016, during Obama’s presidency, the Departments of Justice and Education released similar guidance. The guidance required institutions to “treat a student’s gender identity as the student’s sex [under] of Title IX…” In 2017, however, President Donald Trump’s administration rescinded the 2016 guidance.
In conclusion, with the release of the EO, the Biden administration has made sex discrimination prevention a main priority. Although the EO mainly focuses on Title IX, sex discrimination prevention under Title VII does impact most employers. Regarding Title IX, educational institutions need to review their policies to ensure they prohibit discrimination on the basis of sex. Additionally, while Title VII applies federally to employers with 15 or more employees, some states have specific sex discrimination laws. Some of these state laws could apply to small employers with as few as 1 employee. Accordingly, employers need to investigate which, if any, state-specific anti-discrimination laws they need to follow.