Last year, we discussed U.S. Supreme Court decisions regarding discrimination on the basis of sexual orientation and gender identity.  In his first day as President of the United States, President Biden issued an executive order, stating that based on the Supreme Court’s interpretation of the phrase “because of…sex” that all laws prohibiting sex discrimination, including Title IX of the Education Amendments of 1972, the Fair Housing Act, and the Immigration and Nationality Act must also prohibit discrimination on the basis of gender identity and sexual orientation.

With the order, the President directed the heads of all federal agencies to review all existing regulations pertaining to sex discrimination and ensure that those regulations are consistent with his order.  He also directed the heads of each agency to take all necessary steps to implement his policy of antidiscrimination.  The policy applies to all agencies except those considered to be independent regulatory agencies under the law.

So what can we expect with the implementation of this executive order in the next 100 days?  Well, it remains to be seen.  After the Supreme Court’s decision in Bostock v. Clayton County, all employers across the country should have modified their anti-discrimination policies to include gender identity and sexual orientation as protected classes.  Furthermore, while federal agencies have the authority to issue new regulations (following the Administrative Procedures Act), only Congress can pass new laws.

For now, our advice is simple: don’t discriminate against employees (or students, or potential renters) on the basis of their protected class status, including gender identity and sexual orientation.  We will keep abreast of any substantial changes to federal antidiscrimination laws and let you know as soon as they occur, and how they could impact you.  If you, or your organization, need assistance in updating your antidiscrimination policies, or investigating claims of discrimination, contact the Wiley Law Office, for employment law experience that works.