President Biden, in an executive order that aims to “prevent and combat discrimination based on gender identity or sexual orientation”, is calling on schools across the country to allow transgender athletes to participate in the sport of their gender identity.
“Children should be able to learn without worrying about whether they will have access to the bathroom, the dressing room or school sports”, says the new dispatch, released on the first day of his presidency.
The order is a strong sign that the Department of Justice will enforce it under Title IX – and schools that fail to comply are at risk of losing funding.
The order also calls for equal treatment “regardless of gender identity or sexual orientation” in the workplace and in healthcare settings. “All people must receive equal treatment under the law, regardless of their gender identity or sexual orientation,” says the order.
The order points to the case of the Supreme Court Bostock v. Clayton County (2020), where the court upheld Title VII of the Civil Rights Act of 1964 which prohibits discrimination “because of … sex” includes discrimination based on gender identity and sexual orientation.
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Biden, in the application, tied for intersectional discrimination, writing that discrimination based on gender identity and sexual orientation is often associated with discrimination based on race or disability.
Heads of agencies are required to reassess their policies that address Title VII or any law that prohibits sex discrimination.
Transgender athletes in schools were a hot topic of debate last year when 17 states introduced bills to restrict athletes from participating in sports of their gender designated at birth. Only one became law – in Idaho. The Trump administration supported the ban, but a federal judge temporarily blocked its implementation after an American Civil Liberties Union (ACLU) lawsuit.
The Trump administration also intervened in Connecticut when the United States Department of Education (DOE) concluded that a law that allowed transgender high school girls to compete in women’s sports teams violated Title IX right of designated female girls at birth. DOE threatened Connecticut schools with withdrawing funds or facing DOJ action, but nothing happened. The government intervened to support a case of several cisgender girls seeking to block state policy. The plaintiffs argued that transsexual brokers had an unfair physical advantage.
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The case has not yet been decided.
Currently, 14 states and the District of Columbia have policies similar to those of Connecticut, according to Transathlete.com. Another fourteen allow the participation of transgender people with certain conditions, such as hormonal treatments or other proof that the athlete is in transition, according to the organization.
Last year, a group of Republican senators introduced a bill that would revoke federal funding for schools that allowed transgender girls to compete in women’s sports, but it didn’t get very far. Former Senator Kelly Loeffler, R-Ga., Who co-sponsored the project, highlighted a dispute in Connecticut where two contestants, who were born male but were identified as women, won 15 state women’s championships.
Erin Buzuvis, a professor at the Western New England School of Law, specializing in gender and discrimination in education and athletics, told the Associated Press that the Connecticut case could “evaporate” if the new government did not want to pressure him.
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“The situation in Idaho is different because it is a state law that is being challenged under the doctrine of equal protection,” said Buzuvis. “This could set some kind of national standard on what kind of policies states can and are prohibited from having. But that does not necessarily mean that the case would say, ‘This is the only policy that all states must have.’ “
The Associated Press contributed to this report.