Transgender policy for public school children.
THE CASE
On the day of his inauguration, President Biden issued Executive Order No. 13988: “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” (Jan. 20, 2021).”
EO 13988 asserts that Title IX of the Education Amendments of 1972 and other federal laws also should be interpreted to prohibit discrimination based on sexual orientation or gender identity (“SOGI”) and requires the head of each agency to find ways to force homosexual and transgender “education” and anti-discrimination policies in publicly funded schools - even elementary school children. This was followed on March 8, 2021 by Executive Order No. 14021, entitled “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.”
The Department of Education (“DOE”) complied by issuing a new “Interpretation” explaining that “‘Title IX’s prohibition on sex discrimination ... encompass[es] discrimination based on sexual orientation and gender identity’ . . .” DOE added “to the extent other interpretations may exist, this is the best interpretation of the statute.” DOE also stated that it would “fully enforce Title IX” against discrimination by educational organizations that receive federal financial assistance. DOE then issued a “Dear Educator” letter to those entities that receive federal assistance and DOE believed would be subject to DOE’s new interpretation.
On July 13, 2022, DOE issued a Notice of Proposed Rulemaking entitled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.”
Led by the State of Tennessee, 20 states filed suit in the Eastern District of Tennessee challenging the legality of the DOE and EEOC guidance documents.
On July 15, 2022, the district court issued a preliminary injunction of the two agencies’ guidance documents, preventing implementation of this document as to plaintiffs. After the federal government appealed, a panel of distinguished Constitutional lawyers has filed an amicus brief supporting the challenge to EO 13988.