BERKELEY HEIGHTS, NJ - During his first day in office, President Biden signed an executive order to combat discrimination against the LGBTQ+ community. Most notably, the order states: “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports…no matter their gender identity.”

Highly controversial, this executive order seeks to allow transgender students access to facilities used by the gender they identify with. 

Senior Nicole Emma expressed her support of the bill. “Transgender students are students like anyone else and have a right to change in the locker room or use the bathroom of the gender they identify with. Biden needs to work to protect these people and also needs to send a message that homophobia will not be tolerated.” 

While some students expressed concerns about feeling uncomfortable with transgender students using the same restrooms or locker rooms, nationwide polls show the majority of people support the bill and their opinions align with Emma’s statement.

With regard to school sports, however, some students raised a question of whether a person’s hormone levels, the standard the Olympics uses for athletes to compete, would give them an unfair advantage in a sport. 

Emma said, “I saw a really interesting argument [where] someone pointed out the fact that Michael Phelps has a gene that makes him a much better swimmer than others. By the logic of those who are against transgender people participating in sports, Michael Phelps should not be allowed to participate either.”

Given the executive order’s controversial nature and far-reaching impact across schools in the U.S., its constitutionality will be tested. Its legality relies on the recent Supreme Court case Bostock v. Clayton County, which decided that firing a gay man for being gay constitutes sex discrimination. The court reasoned that if that gay man was assigned female at birth, he would not have been fired for liking men, and since the only difference is sex, it is sex discrimination. A similar conclusion was reached with gender identity in the consolidated case with Bostock in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. 

Biden’s legal team will likely argue that if a transgender female student is denied use of a  women’s restroom, that constitutes sex discrimination under Title IX, because if that transgender woman was assigned female at birth, she could freely enter the women’s restroom.

Not everyone agrees with this interpretation. Senior Charlotte Kaltenbach expressed her support for Biden’s executive order, but stated, “I think in matters of sexual orientation, that is a reasonable legal interpretation. [However], I think this is an unreasonable definition for cases of gender identity-based discrimination. This definition invalidates the gender the victim identifies with.” 

For example, a transgender woman who is denied access to female facilities must be viewed as a male for an action to count as sex discrimination. This may be problematic to people in the transgender community, since they want to be legally acknowledged as the gender they identify with.

Kaltenbach said, “I would advocate for the separation of terms sex discrimination and gender identity discrimination.” 

A more clear distinction in the law would resolve this problem, and also counter some of the arguments made by opponents of this executive order. Unfortunately, Congress has failed to update discrimination statutes with separate protected categories, and has not passed the Equality Act through the Senate to protect LGBTQ+ people.  However, if the Equality Act is passed after a hearing on March 17, Title IX will expressly include gender identity as a separate category from sex and resolve the distinction problem.

Due to the current ambiguity of who Title IX protects, the Supreme Court may rule the executive order illegal if President Biden moves forward to end LGBTQ+ discrimination in schools. If this happens, Kaltenbach believes people should take action. 

“I believe society should publicly protest in a peaceful manner and display their support for it. Voting for elected officials who will promote the policies and legislation people want to see passed is also very important,” Kaltenbach said.

Biden’s presidency has quickly demanded change through his executive order to combat discrimination against LGBTQ+ students in bathrooms, locker rooms, and school sports. So much is at stake for the LGBTQ+ community, and it is important to hold politicians accountable to make sure they follow through with their promises.