Bostock, Biden and Bathrooms
On October 9th, 2019. The United States Supreme Court held that employment discrimination based on “sex” as protected until Title VII extends to sexual orientation. In that case, Gerald Bostock, an employee with the Georgia County Child Welfare office was terminated following an audit for “conduct unbecoming of its employees". Prior to termination, Mr. Bostock's supervisors had made comments about his sexual orientation after they became aware of his participation in a gay sports league. This 6-3 decision essentially prohibited employment discrimination based on sexual orientation.
While Justice Alito mention in his dissent that other laws would likely be implicated, the impact of the court’s ruling has yet to have a major effect on the majority of school districts as 1) it was limited to Title VII employment rights and 2) the Trump administrations had not taken any executive action to expand those provisions, but that has changed.
On President Biden's first day in office, he signed several executive orders. One, available HERE, directs heads of all agencies to “review all existing orders, regulations, guidance, documents, policies, programs, or other government actions” administered by Title VII or “any other statute or regulation that prohibits sexual discrimination”.
In short, the Biden administration is calling on all federal agencies to reevaluate their existing policies and procedures and bring them into compliance with the Bostock ruling. By doing so, agencies will be forced to review all relevant discrimination policies related to sex in light of the sexual orientation ruling in Bostock despite the January 8 Department of Educations memo limiting its effect on Title IX. (See HERE).
The implications for local districts could be huge. One major issue for districts with limited funds is meeting future compliance issues with access to restrooms. While the Supreme Court declined to hear a case out of the 9th Circuit in December concerning the right to use which restroom that fits a given student's sexual orientation, they soon may be forced to review the issue.
Both the 4th and 11th Circuits have ruled in favor of students that express a desire to use the restroom of their sexual orientation. In both cases, the students began using the boys' restroom until the district began to hear complaints. Subsequently, the students were required to use the girls' restroom or in Mr. Adams's case (Florida 11th Circuit), a gender neutral restroom. One interesting point concerning that case was the court was clear to point out the substitution of a gender-neutral restroom was not sufficient.
Now while both of these cases were before a three-judge panel, it does pave the way for a full hearing and possible appeal. That is if there isn't another case in the meantime that rises to the Court’s attention should such regulations be implemented into Title IX as indicated by Biden’s executive order.
Finally, comes the issues of athletics, a controlling issue in all areas of secondary education. The arguments here are just starting to get hot. Some woman, who are supportive of equal protection for students with sexual orientation issues, struggle with the implication of such measures into athletics. While we have traditionally seen limited girls participate in sports dominated by boys, the number of boys participating in girls' sports were all but non-existent. Their concern is that boys would be allowed to join girls' athletic teams thereby limiting the access to activities to female athletes.
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