Guillaume Paumier via Wikimedia

Biden calls for a review of Trump administration regulations that discriminate on the basis of sexual orientation and gender identity.

Joe Biden issued an executive order on International Women’s Day (March 8) calling for a discrimination-free environment within federally funded educational institutions.

The President called upon the Biden administration to protect and ensure educational environments would be free from discrimination on the basis of sex, sexual harassment, sexual violence, and sexual orientation or gender identity, which includes the LGBTQ+ community.

“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 ordered.

Title IX  protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.

In June 2020, the US saw a radical shift in how LGBTQ+ individuals were legally protected from sexual orientation and gender identity discrimination.

Last year’s Supreme Court ruling, Bostock v. Clayton County, fell under the rights of Title VII of the Civil Rights Act of 1964, which extended rights to LGBTQ+ workers to protect them against any form of employment discrimination.

Title VII workplace discrimination prohibits any discrimination on the grounds of race, sex, religion or national origin.

After the success of the landmark case, questions around Title IX protections and how they apply to LGBTQ+ students arose. It was shortly determined by the Supreme Court that “sex”, under Title VII, should be interpreted to include LGBTQ+ individuals.

As the LGBTQ+ specifics of Title VII fell under speculation, a wider political conversation around LGBTQ+ rights for similar rulings began, including Title IX.

On January 8, the Trump administration issued new guidance under the Department of Education Office of Civil Rights which stated that LGBTQ+ students are not included in the entire protections of Title IX.

It was stated that the Office of Civil Rights should consider specific cases of discrimination under the Title IX civil rights law. In LGBTQ+ cases, this means “sex” should be interpreted as “biological sex”, specifically “male” or “female”.

Biden’s executive order challenges the existing legislation enacted by Republican and former Secretary of Education Betsy DeVos.

Under the new order, Biden has called for the Secretary of Education to review “all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions)” and to present findings to the Director of the Office of Management and Budget within the next 100 days.

The Secretary of Education, Miguel Cardona, has also been ordered to “consider suspending, revising, or rescinding” existing agency actions that are inconsistent with Biden’s discrimination-free policies.

In the closing segment of the executive order, Biden directs Cardona to ensure the appropriate actions are taken to enforce the new policy.

The anti-discrimination policy specifically outlines to offer Title IX protections “to the fullest extent permissible under law”.

Cardona’s department will be expected to support students who have experienced sex discrimination, which includes discrimination due to race, disability and national origin.

Biden’s order directly highlights offering protections to LGBTQ+ identifying students, which includes “sexual harassment, which encompasses sexual violence” and “to ensure that educational institutions are providing appropriate support for students who have experienced sex discrimination”.

Under the US constitution, federal law generally takes precedent over state laws under the Supremacy Clause. While state laws cannot be overturned, existing bills can be in violation of protections issued in federal orders.

President Biden’s executive order (and Title IX protections) qualify as federal directives meaning states such as South Dakota and Mississippi, which have recently passed anti-trans sports bans, are at risk of breaching federal law.