Yesterday, Governor Pillen signed Executive Order 23-16, establishing the “Women’s Bill of Rights.” It’s pretty short; you can read the whole thing here. The EO picks up where LB 575 left off, defining “sex”, “female” and “male” in the context of gender identity. (As a reminder, LB 575 is a legislative bill that was introduced last January and that seeks to adopt the Sports and Spaces Act, but has yet to pass.) More on that shortly. With conflicting federal court opinions, new Title IX regulations on the way, and everything else out there, about the only missing ingredient in this confusing swirl was a gubernatorial executive order. Well, here we are.
As school lawyers, we strive to cut through the politics surrounding these (and other) issues and instead focus on the anticipated legal impact of the specific actions being taken. In that vein, what is notable about this EO is not so much what it says, but what it doesn’t. Despite the subtitle (“Establishing a Women’s Bill of Rights”), the EO doesn’t lay out any new rights that it creates in favor of women. Despite some of the press surrounding it, the EO does not explicitly direct K-12 schools to take any specific actions regarding interscholastic athletics or sex-segregated facilities like bathrooms and locker rooms. And, as most of you are probably already thinking, many (all?) of those issues are likely governed by the federal Title IX statute and regulations and the court decisions interpreting them. So, candidly, we’re still considering what the legal impact of the EO’s brief directives will be for K-12 school districts, if any. So, what does the EO actually say?
It requires “all state agencies, boards, and commissions” to adhere to the definitions of male and female based on reproductive organs at birth when making rules and adjudicating cases. The plain reading of the EO means that requirement applies only to state-level entities, not political subdivisions like schools.
The EO does not explicitly dictate that schools must handle things like athletics, locker rooms, or bathrooms in any particular way. By the same token, the EO does not provide schools with any sort of legal protection if they are sued by students and families over these issues. The only section that specifically mentions schools says that for purposes of collecting vital statistics to comply with antidiscrimination laws, schools and other entities have to define individuals as “male” or “female” based on reproductive organs assigned at birth. It’s not clear what vital statistics data means in this context or how that would change the application of Title IX or any other laws with their own definitions and requirements.
Our advice to schools remains unchanged: unless and until action is required, we believe the best legal approach is to work with students and families who are facing transgender-related issues on an individual basis. Passing an explicit policy one way or the other isn’t legally required. At best, you’ll make the news; at worst, you’ll find your school in litigation. This EO doesn’t help clarify much, nor has it changed our thinking--at least not yet.
For now, we recommend sitting tight, at least until it’s clearer what this EO was intended to do and how it will be interpreted. If you have any questions about the EO or any other issues relating to gender identity and the law, let us know! You can always contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or by sending all of us an email at ksb@ksbschoollaw.com.