Trump's Executive Order 14168 is set to cause a lot of discrimination lawsuits. 

On the one hand, the EO is a playbook for reverse discrimination and hostile environment claims by women because the EO claims that women have been victimized by transgender individuals claiming inclusion in womanhood. The EO states that "men [] self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women's domestic abuse shelters to women's workplace showers. This is wrong." As such, biological women who are subjected to transgender individuals in single-sex spaces can now argue that the space provider created a hostile environment by such inclusion and any woman who was denied access or was otherwise sexually harassed by a transgender individual in such a space has a very good claim under federal law.   

On the other hand, the EO expressly states that SCOTUS's decision on workplace discriminations' protection for "Sex," where it defined the protected class of "Sex" to also include protections for "Sexual Orientation" and "Gender Identity" would be untenable for education discrimination. Specifically, the EO states that "The prior Administration argued that the Supreme Court's decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent." However, the distinction is meaningless between workplace and school environment; discrimination is discrimination wherever it occurs. That is to say, if Trump's administration believes "Sex" protections should not include protections for "Sexual Orientation" and "Gender Identity" at school, they should equally not include those protections at work. This distinction between Title VII and Title IX is just stupid. 

Regardless, the EO is also going to cause lawsuits from intersex individuals because it is facially flawed in stating that "[i]t is the policy of the United States to recognize two sexes, male and female." Turns out that is biologically false without even discussing a distinction between gender and sex. Specifically, some people are born with biological characteristics of both females and males and this EO specifically targets them while discriminating against their personhood.

Buckle-up - Trump is about to usher in the era of discrimination lawsuits.

Title IX's anti-discrimination obligations on elementary schools, secondary schools, postsecondary institutions, and other recipients of federal financial assistance have been updated and become effective August 1, 2024, by regulation 89 FR 33474 (34 CFR 106)

Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” absent certain exceptions. 20 U.S.C. 1681.

Consistent with Title VII's SCOTUS decision in Bostock v. Clayton County, the regulations define sex broadly to "include[] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity" in § 106.10.

The regulations have been updated for the following purposes:

• "to provide greater clarity regarding: 
• the definition of “sex-based harassment”; 
• the scope of sex discrimination, including recipients' obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and 
• recipients' obligations to provide an educational environment free from discrimination on the basis of sex."
• to ensure that "recipients' procedures for investigating and resolving complaints of sex discrimination are fair to all involved." 

Education discrimination is illegal throughout the United States and in certain states, like New York, there are even greater protections, rights, and damages available to victims and their parents. 

When it comes to education, you and your child have a right to be free from harassment, bullying and other forms of wrongful discrimination that is perpetrated by teachers, the administration, or even other students (your peers). This applies to public schools, non-religious private schools, colleges and universities. Simply, you and your child can't be denied a right to learn because of who you are. 

Anti-discrimination laws in education apply regardless of whether the discrimination is explicit or implicit. While we've all heard about equal access to sports between the sexes / genders, or even teachers having sex with their students, discrimination lawsuits more commonly concern bullying of minorities, the failure to give testing accommodations to disabled students, and, even, the failure to extend days off to religious observers. Simply, it is the administration's duty to make education equally accessible to all and this failure can result in a lawsuit.  

On the federal level, Title IX of the Educational Amendments protects against sex discrimination while Title VI of the Civil Rights Act addresses race, color, and national origin discrimination, and finally Title II of the Americans with Disabilities Act (ADA) protects against disability discrimination. However, these federal laws on education discrimination were just limited by the Supreme Court and can, mostly, no longer result in victims receiving emotional distress or punitive damages.

Nonetheless, states, like New York, provide victims with the right to recover for their emotional distress and punitive damages. Moreover, New York adds protections by covering victims of discrimination with respect to additional categories, such as race, color, religion, disability, national origin, sexual orientation, military status, sex, age and marital status. New York even makes clear that it's own public school districts can be held accountable for discrimination based on an amendment to its laws from July 25, 2019, A3425.

If you or your child were a victim of education discrimination, it is important to act quickly and file your claim after hiring a lawyer. In New York State, claims against public school districts must be filed within 3 months after the discriminatory event. While the State's anti-discrimination laws otherwise provide up to 3 years for lawsuits against non-public schools (i.e., private schools / colleges / universities), it's nonetheless important to act quickly to preserve all the discriminatory evidence (i.e., audio / video), which is done by immediately sending what is known as a spoliation notice.

To be clear, discrimination victims, in New York, can recover compensatory damages (being made whole with emotional distress damages), punitive damages (punishment damages), and your attorneys' fees. The perpetrator can lose their license (if licensed as educators or otherwise), be required to take trainings, and be ordered to stop their offensive behavior. There are fines and more. Discrimination is wrong and must be stopped. 

Don't be afraid to speak-up. If you are advancing an anti-discrimination right for yourself or your child, you are protected from retaliation. Even if it is ultimately found that you or your child was not discriminated against, you both can nonetheless be compensated for facing unlawful coercion, intimidation, threats, or other types of interference with your anti-discrimination rights. Again, this is not just true if you are advancing your own rights, it also applies if you are raising your child's rights, or another student's rights, because anti-retaliation laws protect anyone who aids and/or encourages someone else in exercising their rights to be free from discrimination. 

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