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President Biden’s Executive Order on Preventing Discrimination

January 27, 2021

On his first day in office (January 20, 2021), President Biden signed a series of Executive Orders.  Among these first Presidential actions, Biden signed an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”

The Executive Order states:

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.  (emphasis added).

The Order is put in the broadest possible terms and states that it will be the policy of the Executive Branch to prohibit discrimination against individuals based on gender identity or sexual orientation, in all matters subject to the Executive Branch’s authority. 

The Order also identifies specific laws that have already been interpreted to prohibit discrimination based on sexual orientation or gender identity.  For example, the Order states that “[t]hese principles are also enshrined in our Nation’s anti-discrimination laws, among them Title VII of the Civil Rights Act of 1964...”.  The Order goes on to note that the Supreme Court recently determined that Title VII’s prohibition against discrimination “because of...sex” covers discrimination based on gender identity and sexual orientation, citing Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731(2020).

However, the Order then pivots and references a series of other federal laws that our Supreme Court has not yet interpreted in a similar manner.  The Order states:

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.

Therefore, the Executive Order states that the Biden Administration will interpret any prohibition against sex discrimination that appears in these laws as prohibiting discrimination based on gender identity and sexual orientation, just as the Supreme Court’s Bostock decision interpreted Title VII’s prohibition against sex discrimination to apply to gender identity and sexual orientation in employment cases. 

The Order also indicates that federal agency protocols, procedures, and other non-statutory standards will be implemented and applied in a manner that conforms to the Order.  This aspect of the Order has perhaps the most legal traction and import:  the seminal Acts of Congress that are referenced in the Executive Order and the administrative agencies that interpret and enforce them are part of the Executive Branch and have Cabinet-level Secretaries at the helm.  As a result, Wisconsin school districts can, for example, count on activity at the Department of Education--Office of Civil Rights that is aimed at reversing the Trump administration’s previous orders and regulations related to Title IX. 

Wisconsin school districts can also expect a measure of “gap-filling” at the agency level, where current practices may be questioned and new approaches adopted in an effort to implement the Order’s general policy goals.  For example, President Biden’s Executive Order specifically states that “[c]hildren should be able to learn without worrying whether they will be denied access to the restroom, the locker room, or school sports.”  While the Order is a statement of policy and, accordingly, is expected to communicate its purposes and goals in more broad terms, the breadth of this portion of the Order covers several issues (and “subissues”) that have not been settled by our courts. 

There has never been a serious dispute that Title IX applies to school sports (although the meaning of Title IX has been debated).  In addition, most authorities seem to agree that Whitaker v. Kenosha Unified School Dist., et. al. No. 16-3522 (7th Cir. 5/30/17) (“Kenosha”), decided by our Seventh Circuit Court of Appeals in Chicago, settles important questions for Wisconsin school districts concerning the application of Title IX to transgender students and transgender students’ right to use the restroom of the gender with which they identify.[1] 

However, President Biden’s Order takes another step and includes “the locker room” as a place that a student should not be denied access based on gender identity or sexual orientation.  Courts having jurisdiction over Wisconsin school districts have not issued a decision concerning, for example, a transgender student’s right to use the locker room of the gender with which they identify, in circumstances where the transgender student’s biological gender is different from the other students using the locker room at the same time.  As a result, the Order appears to direct OCR to address this issue in some manner, even though courts having jurisdiction over Wisconsin school districts have not broached the subject to any significant (or meaningful) degree, much less definitively resolved it.  This places a premium on deliberate, careful policy review, analysis, and rebuilding for Wisconsin school districts in policy matters, such as pupil discrimination, bullying, and harassment; few situations call for more precision in policy craftsmanship.

Moreover, the Order requires “the head of each (federal) agency” to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” under any statute that prohibits sex discrimination if the existing agency action is inconsistent with the Order’s statement of policy.  Agency heads must then “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.” (emphasis added). 

Consequently, any previous agency action concerning statutes that prohibit sex discrimination must be revisited to ensure that the agency prohibits discrimination against individuals based on gender identity or sexual orientation in any situation where a statute prohibits discrimination based on sex.  Further, however, the emphasized phrase of the Order may give separate life to its general policy statement (i.e., the policy might not be subordinate to whether there is any enabling statute to serve as the policy’s vehicle).  This could mean that federal agencies’ own protocols, along with all of the legal materials issued under the agencies’ own authority will likely be modified, in practice, on paper, or both. 

Wisconsin school districts can expect to hear more details about these developments as they occur, but should certainly mark “get latest version of X from federal agency” on the perennial to do list, so that decisions at all levels of district operations have the proper guiding materials to be used on the ground.   

Finally, the Order has the most comprehensive scope possible, and is subject only to the limits of any Executive Order’s jurisdiction:  it applies to laws that prohibit sex discrimination, “so long as the laws do not contain sufficient indications to the contrary,” i.e., that specifically disclaim such purposes.

Executive orders have the force of law when issued within their authority, and are both published in the Federal Register and codified under Title 3 of the Code of Federal Regulations.  An executive order is not legislation, however, and its force will often be debated (and debatable) when Congress passes legislation that arguably carries a contrary intent. Federal courts can overturn an executive order if the order is contrary to an act of Congress, such as a federal statute (e.g., the Supreme Court overturned an Executive Order issued by President Clinton, requiring that federal government use foreign languages in providing a series of federal benefits and services). 

For Wisconsin school districts, the President’s Executive Order could have some immediate effect, but certainly provides notice that Biden’s administration will take corresponding executive action in and through federal governmental agencies.  As a result, school districts not only need to review local policies that directly address gender identity and sexual orientation discrimination, but also any policy that implicates these subjects. 

For now:

  1. Make sure that your school district’s discrimination, bullying, and harassment policies are reviewed, for both employees and students. If this requires a referral to the school board’s policy committee in your district, make the referral; things will probably get moving in this area.  Also, start reviewing your policies now with your kitchen cabinet (whoever you normally work with on reviewing internal procedures and legal matters) to help develop options and information to help guide your school board as a whole
  1. Watch for DPI updates. Title IX is a funding statute and DPI administers federal funds, so there at least could be some reevaluation of how funds are being allocated or processed.
  1. Make sure someone visits OCR’s web site regularly to check for updates. As noted, the agency generally gives notice to its constituents about significant agency activity and, to be sure, school districts general communications networks help school districts to stay abreast of developments at relevant federal agencies.  Nevertheless, checking an agency’s web site gives more information about activity, matters scheduled for review, etc., and can help school districts understand what timing issues are presented, as well as substantive concerns.
  1. Talk to your legal counsel. These issues have generated remarkable levels of  activity in school districts over the past few years and significant changes in policy and regulation (transgender student rights and the rights of students accused of sexual harassment being only two areas where significant changes have been made with each presidents’ administration).  Lawyers’ contributions to your discussion will be an important protective measure.
  1. Remember that the training that school districts generally provide for employees and students concerning discrimination has to account for sexual orientation and gender identity. For example, school districts provide training for employees on sexual harassment.  To be sure, it is appropriate to provide training to try to reduce the incidence of sexual harassment, but it is also important to be able to point to the district’s training protocol as evidence that the district cannot be held liable for harassment in certain cases.  A defective training program may impair your ability to use the appropriate training defense to respond to hostile work environment claims; addressing your programs’ content now will help to resolve this concern.

For questions regarding this article, please contact the author, Attorney Kirk D. Strang (email: kstrang@strangpatteson.com; telephone: 844-826-0906), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

[1] The Kenosha case involved a ruling on injunctive relief only and, because the case settled soon thereafter, the court never issued a ruling on the merits.  Consequently, some commentators have intimated that Kenosha is not, strictly speaking, binding precedent in future cases.  While the court in Kenosha undeniably issued its ruling in the context of an application for injunctive relief, this commentator respectfully submits that Kenosha is authoritative when we consider the central question of “who does Title IX protect?”, because the court specifically ruled that Title IX applies to a transgender student who is seeking to use the restroom of the gender with which the student identifies.   As a result, I believe that Kenosha establishes the law of this circuit on this question and, accordingly, Wisconsin school districts are required to proceed accordingly.

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