Review of the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
*Animekh Pandey
“The caged bird sings with a fearful trill of things unknown but longed for still and his tune is heard on the distant hill for the caged bird sings of freedom.”
-Maya Angelo
The plight of a caged bird: Background of the Executive Order
If we look at the relevance of the Executive Order, it is the first order of the Biden administration. The main objective of this resolution was to amend some of the wrongs of the previous administration and portray a progressive image of the current administration. Throughout his political campaign, Biden had a clear view regarding Gender justice, with a clear agenda to promote such ideals once in power. Biden's executive order directing federal agencies to avoid discrimination based on gender identity or sexual orientation also comes when more than 20 states such as Tennessee have moved to pass legislation that will ban transgender athletes from competing in middle school and high school sports under their gender identity. In Montana, a GOP-backed bill bans transgender students from playing on school and college sports teams for the gender they identify, the Associated Press reported[1]. According to the Associated Press, a group of female high school runners in Connecticut; one of the states that allow transgender athletes to compete without restrictions, filed a federal lawsuit that seeks to block transgender athletes in the state from participating in female sports, according to the Associated Press[2]. In such a divided background, the Executive Order is a ray of hope for the progressive development of gender justice in sports law.
Why what and whatnots: relevance of the Executive Order
The Executive Order was signed by President Biden within hours of his inaugurations as the 46th President of the US on 20th January 2021. The primary objective of the Executive Order is to uphold the decision of the US Supreme Court in Bostock v. Clayton County throughout all federal agencies. Bostock v. Clayton County resolved the question of whether applicants and employees were protected from workplace discrimination under Title VII of the Civil Rights Act of 1964 based on their sexual orientation or gender identity. Following this judgement, the Trump administration took all measures to circumvent this decision, including the United States Department of Education efforts to interpret Title IX of the Education Amendments Act of 1972 and distinguish it from Title VII of the Civil Rights Act of 1964. The Trump administration used this as an excuse to recuse itself from applying Bostock v. Clayton County, especially in matters relating to certain controversial matters, such as sex-separated bathrooms, locker rooms and athletic teams. Notably, the Executive Order addresses student access to restrooms, locker rooms, and sports explicitly. It confirms that the Bostock holding applies to Title IX to prohibit discrimination against transgender individuals in school settings. "Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love," Biden's executive order reads. "Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports[3]." It also orders the Department of Education to officially reverse any policies impacting the rights of transgender and gender non-conforming students.
The relevance of this measure, in my personal opinion, can be considered in the longer run. Many authors have pointed out the innate unfairness in discriminating against transgender and transsexual athletes.[4] Sarah Teetzel discusses a case of a 15-year-old-student diagnosed with what the medical field now refers to as "gender dysphoria" who was assigned to the category male at birth but whose gender identity is firmly female. She further discusses how situations would be different for this athlete in her hometown in Manitoba, Canada and the US cities on the US-Canada border. She states that according to the Manitoba High School Athletics Association's Trans athlete policy enacted in 2015, she can compete on the girls' teams, no questions asked[5]. In contrast, this athlete would face multiple obstacles in the US if she wants to develop a carrier in sports. The Executive Order brings the US closer to a more progressive legal approach that does not discriminate. In the long run, this would influence policies in the global arena. In the status quo, transsexual athletes may participate in the Olympic Games if they meet the three conditions of the Stockholm Consensus:
Surgical anatomical changes have been completed, including external genitalia changes and gonadectomy.
The appropriate official authorities have conferred legal recognition of their assigned sex.
Hormonal therapy appropriate for the assigned sex has been administered verifiable and for a sufficient length of time.
A quick overview of this Consensus reflects that though this may seem to be a gender-neutral policy in practicality, it harshly affects women athletes. They uphold the ‘advantage thesis’, which implies that the female athletes should be tested for increases masculine characters, for example, tests for remain below a certain threshold of testosterone so that no one will have an “unfair” physical advantage[6]. This in itself points out classical stereotypes of women being weak and non-athletic by nature. Further, it also blocks opportunities for the trans-sexual community by making their participation in international sport highly dependent on local legislation and state recognition of their gender status. These are regressive thoughts and ideas that have infiltrated inside policies reflected in the status quo by various bodies in sports. The Executive Order in itself opens up to a new opportunity that may save the trans community soon.
Conclusion: Miles to go before I sleep
"The woods are lovely, dark and deep, But I have promises to keep, And miles to go before I sleep, And miles to go before I sleep."
-Robert Frost
This Executive Order is not a robust mechanism that would protect the LGBTQIA+ community in Sports, but it is a positive step towards a certain change. The need of the hour is to formulate a resolution not just in the US but also at a global platform that is more inclusive. The Executive Order is also microscopic in its jurisdiction confined to school and college sports. In the absence of any concrete steps in preserving the rights of LGBTQIA+ in professional sports, not much would be achieved.
*The author is a law scholar from Dr. Ram Manohar Lohiya National Law University, Lucknow.
(The image used here is for representational purposes only)
References
[1] Samuels, Iris. “Transgender Youth Bills in US States Reflect Deep Divisions.” AP NEWS, Associated Press, 21 Jan. 2021, apnews.com/article/montana-bills-judiciary-helena-060d274f606d9e8e08b786be0398efd3.
[2] Eaton-robb, Pat. “Girls Sue to Block Participation of Transgender Athletes.” AP NEWS, Associated Press, 12 Feb. 2020, apnews.com/article/8fd300537131153cc44e0cf2ade3244b.
[3] “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The White House, The United States Government, 21 Jan. 2021, www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/.
[4] John Coggon, N. Hammond, and S. Holm, "Transsexuals in Sport - Fairness and Freedom, Regulation and Law," Sport, Ethics and Philosophy 2, no. 1 (2008), 4-17. See also George Cunningham, "LGBT Inclusive Athletic Departments as Agents of Social Change," Journal of Intercollegiate Sport 8 (2015), 43-56.
[5] Teetzel, Sarah. “Transgender Eligibility Policies in Sport: Science, Ethics, and Evidence.” Reflecting on Modern Sport in Ancient Olympia: Proceedings of the 2016 Meeting of the International Association for the Philosophy of Sport at the International Olympic Academy, edited by Heather L. Reid and Eric Moore, Parnassos Press – Fonte Aretusa, 2017, pp. 161–170. JSTOR, www.jstor.org/stable/j.ctvbj7gdq.17. Accessed 18 Mar. 2021.
[6] Henne, Kathryn. “The ‘Science’ of Fair Play in Sport: Gender and the Politics of Testing.” Signs, vol. 39, no. 3, 2014, pp. 787–812. JSTOR, www.jstor.org/stable/10.1086/674208. Accessed 18 Mar. 2021.
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