January 22, 2022

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Biden’s EO Expands Title IX to Prohibit LGBTQ Discrimination

The Biden administration’s Executive Order 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” expands prohibited forms of sex discrimination under Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 to include discrimination on the basis of gender identity and sexual orientation.

The Executive Order cites the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia for the proposition that Title VII’s prohibition on discrimination “because of … sex” covers discrimination on the basis of gender identity and sexual orientation. The Executive Order proceeds to state that it is the Biden administration’s policy to apply the reasoning in Bostock to all laws and implementing regulations that prohibit sex discrimination, including Title IX. Essentially, sex discrimination under Title IX now prohibits discrimination on the basis of gender identity and expression and sexual orientation. The Executive Order directs all federal agencies to review and revise all existing orders, regulations, guidance documents, policies, programs, or other agency actions administered under any statute or regulation that prohibits sex discrimination for inconsistency with the Executive Order by April 30, 2021.

The Executive Order is a return to the transgender rights policy established by the Obama administration in guidance published by the Department of Justice and the Department of Education on May 13, 2016. The Trump administration rescinded that guidance in 2017. The 2016 guidance required institutions to “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The Biden administration’s Executive Order similarly expands the categories of prohibited sex discrimination to include gender identity, gender expression, and sexual orientation.

Educational institutions should review their policies and practices to ensure they protect the rights of transgender students and employees and prohibit discrimination on the basis of sexual orientation. In addition to revising anti-discrimination and harassment policies, institutions should review their approach to issues such as housing, bathroom and locker-room access, athletics, and preferred name and pronoun policies. Most significantly, this means that schools must ensure their restroom and locker room access policies provide equal access to students and employees consistent with their gender identity. Additionally, any harassment prevention training should address LGBTQ-related protections. The Department of Education is expected to issue guidance to aid institutions in complying with the Executive Order.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 35
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Susan D. Friedfel Employment law attorney for educational instituions in White Plains, NY of Jackson Lewis law firm
Principal

Susan D. Friedfel is a Principal in the White Plains and New York, New York, offices of Jackson Lewis P.C.

Ms. Friedfel collaborates with clients to find practical solutions for a variety of issues that arise in the workplace. She counsels clients in various industries, including law firms, financial institutions, educational institutions, and not-for-profit organizations, on a wide array of issues.

Susan D. Friedfel  provides advice and counsel on matters such as:

  • employee recruiting and hiring practices
  • family and medical leave
  • reasonable...
914-872-8027
Michelle E. Phillips, Jackson Lewis Law Firm, Labor Employment Attorney
Principal

Michelle E. Phillips is a Principal in the White Plains, New York, office of Jackson Lewis P.C. She handles various types of employment litigation, with an emphasis on sexual harassment matters.

Ms. Phillips also counsels clients on a variety of labor and employment matters concerning federal and state employment laws. She frequently conducts and advises clients on internal investigations and leads employment discrimination and sexual harassment seminars and in-house diversity training programs for clients.

914-328-0404
Joshua D. Whitlock Higher Education Litigation Civil Rights Attorney Jackson Lewis Law Firm North Carolina
Principal

Joshua D. Whitlock is a principal in the Charlotte, North Carolina, office of Jackson Lewis P.C. He focuses his practice on meeting the legal needs of higher education institutions.  

Josh believes deeply in higher education’s mission and impact and considers it a great privilege to work closely with institutions of all types—from community colleges, to small private schools, to large public research universities—to find thoughtful and effective answers to the unique issues that they face. Josh has extensive experience...

980-465-7242
Laura Ahrens Labor & Employment Litigation Attorney Jackson Lewis Law Firm South Carolina
Associate

Laura Ahrens is an associate in the Greenville, South Carolina, office of Jackson Lewis P.C. Laura represents employers in workplace law matters, and enjoys collaborating with her clients to find practical solutions to the variety of issues that arise in the workplace.

Laura is a member of the firm’s General Employment Litigation practice group. She represents employers in various employment and labor matters, including claims of discrimination, harassment, and retaliation brought under Title VII and the ADA. She also...

864-672-8045
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