In one of his executive orders issued on International Women’s Day, President Joe Biden (D) called for ensuring a discrimination-free environment within schools and federally-supported institutions and asked for the Secretary of Education to review all policies in accordance with that.
The President specifically included LGBTQ people in the “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.”
“It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” Biden ordered. “For students attending schools and other educational institutions that receive Federal financial assistance, this guarantee is codified, in part, in Title IX of the Education Amendments of 1972.”
Biden called for the Secretary of Education and Attorney General to “review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that are or may be inconsistent with the policy set forth” and submit them to the White House’s Office of Management and Budget within 100 days.
The new Secretary of Education, Miguel Cardona, was sworn in on March 2. Merrick Garland, Biden’s nominee for the Attorney General, is still awaiting confirmation.
Biden specifically asked for a review of recent changes to the sexual assault regulations in Title IX, which were made by Donald Trump’s Secretary of Education Betsy DeVos and allowed for religious exemptions, “and any other agency actions taken pursuant to that rule.”
Cardona “shall consider suspending, revising, or rescinding” these policies if they are inconsistent with Biden’s order. He is expected to also “review existing guidance and issue new guidance… as soon as practicable.”
Biden expects Cardona’s department to take “additional action” to ensure institutions under their oversight are within federal law regulations to prevent sex discrimination, including “to account for the significant rates at which students who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ+) are subject to sexual harassment, which encompasses sexual violence.”
Advocates are cheering the move, with the ACLU’s Women’s Rights Project director Ria Tabacco Mar stating, “sexual harassment and assault have no place in our schools, yet Betsy DeVos created a double standard that allows schools to ignore reports of harassment based on sex where similar reports based on race, national origin, or religion would require an appropriate response. That is devastating for survivors of sexual harassment and assault, who are overwhelmingly women and girls.
“While the DeVos rule included important provisions to promote fairness of disciplinary procedures, it offered no justification for imposing a double standard.”
This follows the White House’s clear warning that they strictly stand against the slew of anti-trans bills under consideration or passed in several states and their belief that those proposals would be illegal if enacted.
“The president believes that trans rights are human rights and that no one should be discriminated on the basis of sex. Not only is this the law of the land, it’s his own deeply held view,” said White House Press Secretary Jen Psaki just yesterday, the same day the order was signed.
Biden issued an executive order within his first day in office that used the legal reasoning that the Supreme Court adopted in the majority opinion in Bostock v. Clayton Co., which said that Title VII’s ban on job discrimination “based on sex” means that anti-LGBTQ discrimination is banned since it’s impossible to discriminate against LGBTQ people without taking their sex into account.
Biden’s order extends this reasoning to other areas of discrimination covered by federal law, including Title IX’s protections in education.
Since state legislatures cannot overturn federal civil rights protections, this means that states like Mississippi and, last year, Idaho that attempt to ban transgender girls from school sports are in violation of federal law.