WASHINGTON — President Obama made a strong case Tuesday for administrative action on LGBT nondiscrimination measures, saying that transgender students can now "assert their rights" following recent Education Department action laying out an expanded view of protections under Title IX.
The comments are a marked contrast to the Obama administration's inaction on LGBT workers' rights, where Obama has refused to issue an executive order protecting LGBT employees of federal contractors from discrimination and the question of whether an existing executive order applies to transgender workers is stuck in a review.
Speaking in a White House question-and-answer session with Tumblr CEO David Karp, Obama was asked about the Education Department's April memorandum detailing a policy that includes anti-transgender discrimination as part of the sex discrimination banned by Title IX, legislation that bars discrimination by schools.
"Title IX is a very powerful tool," Obama said. "The fact that we are applying it to transgender students means that they are going to be in a position to assert their rights if and when they see that they are being discriminated on their college campuses. And that could manifest itself in a whole variety of ways."
Although the administration endorsed the Student Non-Discrimination Act, legislation pending in Congress that is modeled after Title IX to bar discrimination based on sexual orientation and gender identity by schools explicitly, the Education Department has for the past year been interpreting Title IX's existing sex discrimination ban as including a ban on gender identity-based discrimination. The April memorandum formalized that policy across the department.
The path of supporting an expansive interpretation of current law, even while pushing legislative efforts to make such protections explicit, is the same path some have been urging with regard to workplace discrimination against LGBT people.
In April 2012, the Equal Employment Opportunity Commission ruled that Title VII's bar on sex discrimination included anti-transgender discrimination. Since then, both the EEOC and Justice Department have applied that ruling to Title VII discrimination claims brought against private companies and the government. The Education Department relied in part on the EEOC's ruling in addressing Title IX as it has.
And yet, there is an outlier. The Labor Department enforces Executive Order 11246, which bars federal contractors from discriminating in employment on the basis of, among other reasons, sex. In the more than two years since the EEOC ruling, the Labor Department has refused to apply the EEOC's reasoning in the Title VII case to the executive order.
Labor Secretary Thomas Perez has said on multiple occasions since February that a review is "ongoing" and told BuzzFeed that he was "in charge" of the review, although a public records request for all records in his office relating to the review resulted only in a single document being produced: a letter to members of Congress saying that the review is ongoing. Perez has refused to say when the review began or who is involved in the review.
In addition to the question about the interpretation of the existing executive order, LGBT advocates also have repeatedly asked Obama to issue a new executive order to provide explicit protections for LGBT employees or job applicants of federal contractors. The White House, however, has maintained that its preference is for the passage of the Employment Non-Discrimination Act through Congress, which would apply to most private employers and not only those with federal contracts.
Obama's comments on Tuesday, however, show an understanding of the benefits of immediate action outside of legislation — at least with regard to students. A White House spokesman did not respond to a question about whether Obama believes the Labor Department should take similar action to that taken by the Education Department to ensure that trans workers can "assert their rights" against federal contractors who discriminate against them.
Read the full exchange between Obama and Karp:
MR. KARP: So one question we heard a lot from our community that I wanted to make sure to mention today: Recently -- I think you've been following -- the Department of Ed's Office of Civil Rights and DOJ have extended Title IX protections to trans students. What do you see as the next steps to ensure equal treatment of trans people in schools in America?
THE PRESIDENT: Well, Title IX is a powerful tool. It's interesting -- yesterday I had the University of Connecticut men's and women's basketball teams here. This is only the second time that the men's and women's basketball teams won the national championship in the same year. The previous year was 2004, and it was UConn again.
But what was interesting about it is that the men were kind of a surprise. It was nice. The women were dominant. I mean, the UConn Husky women's program, they rule. And they are incredible athletes. And talking to these young women, they're poised and they're beautiful, and some of them are 6'6" and they're wearing high heels, and supremely confident and competitive. And that's a huge shift from even 20 years ago or 30 years ago. The reason for that was Title IX was applied vigorously in schools, and it gave opportunities -- it's not like women suddenly became athletes. They were athletic before. Michelle, when I work out with her, she puts me to shame. (Laughter.) But it had more to do with restrictions and opportunity.
So the point I'm making is, is that Title IX is a very powerful tool. The fact that we are applying it to transgender students means that they are going to be in a position to assert their rights if and when they see that they are being discriminated on their college campuses. And that could manifest itself in a whole variety of ways.
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at firstname.lastname@example.org.
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