Melissa M. Carleton, Kate Vivian Davis, Bricker & Eckler LLP |
After months of speculation as to how a new administration may enforce Title IX, newly inaugurated President Biden wasted no time in addressing the matter. On his first day in office, he issued seventeen executive orders, including the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”
The executive order addresses the U.S. Supreme Court’s decision last summer in Bostock v. Clayton County, in which the Court held that Title VII prohibited employers from discriminating on the basis of sexual orientation and gender identity. A close read of the decision suggested that the Court might favor a similar interpretation of Title IX, but the U.S. Department of Education (ED) did not appear to adopt that reading. In fact, in the months that followed, ED issued severaldocuments suggesting that it would not apply the reasoning of Bostock in the Title IX context. The question for school districts and institutions of higher education was whether courts would agree with ED’s reasoning, or whether they would be enforcing a completely separate standard.
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