Biden Executive Order Expands Title IX Protections

Ballard Spahr LLP

Summary

President Biden issued a new Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” The Executive Order—which he issued on International Women’s Day, March 8, 2021—directs the U.S. Secretary of Education, Miguel Cardona, to propose policy changes within the next 100 days. These proposed policy changes are anticipated to affect the way colleges and universities handle campus sexual misconduct and sex discrimination allegations.

The Upshot

  • The Trump-era Title IX rule expanding protections for those accused of sexual misconduct is likely to be modified or reversed, impacting how colleges handle campus sexual assault allegations.
  • Title IX policies that do not prohibit gender identity - and sexual orientation - based discrimination will be expanded to cover these classes.
  • The Secretary of Education will be making policy changes to comply with this Executive Order over the next three months.

The Bottom Line

Colleges and universities should be on the lookout for changes to the Department of Education’s Title IX guidance. Over the next three months, the Department of Education will be reviewing its policies to ensure that they are consistent with the Executive Order’s guidance that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.” Any policies found to be inconsistent will be revised or rescinded, or a notice for public comment on revised rules will be issued.
 

On International Women’s Day, the Biden administration issued a new Executive Order “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity” (the Executive Order). The Executive Order begins by announcing the policy of the Biden administration that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”

To that end, the Executive Order directs the U.S. Department of Education, through Secretary of Education Miguel Cardona in consultation with the Attorney General, to review its existing regulations and other guidance that may be inconsistent with the Biden administration’s stated policy and report those findings to the Director of the Office of Management and Budget. The Executive Order also mandates specific review of the rule entitled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 85 Fed. Reg. 30026 (May 19, 2020), and directs Secretary Cardona to issue new guidance as needed to implement the Executive Order “as soon as practicable” and to suspend, revise, rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding agency actions that are inconsistent with the stated purpose of the Executive Order.

The Executive Order recognizes the potential for discrimination on the basis of sex to coincide with other forms of discrimination in educational environments. The Executive Order directs Secretary Cardona to “account for intersecting forms of prohibited discrimination that can affect the availability of resources and support for students who have experienced sex discrimination, including discrimination on the basis of race, disability, and national origin; to account for the significant rates at which students who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ+) are subject to sexual harassment, which encompasses sexual violence; to ensure that educational institutions are providing appropriate support for students who have experienced sex discrimination; and to ensure that their school procedures are fair and equitable for all.”

The Executive Order is silent on what those additional enforcement actions may entail, which leaves a gray area as to the Secretary of Education’s authority pursuant to this Executive Order.

Two noteworthy aspects of the Executive Order include its aim at rescinding a Trump-era rule that protected those accused of sexual misconduct and its effort to expand Title IX protections for LGBTQ+ students.

Last year, former education secretary Betsy DeVos issued a controversial rule, which we previously summarized. The rule narrowed the behavior that constitutes harassment under Title IX, increased the due process afforded to those accused of harassment, and decreased the circumstances in which a school is required to respond to alleged harassment. The Secretary of Education will be reviewing and revising this rule to ensure compliance with the Executive Order.

In January 2021, President Biden issued E.O. 13988, entitled “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which, in part, extended Title IX protections to transgender students. In alignment with E.O 13988, the new Executive Order reiterates that LGBTQ+ individuals are protected under Title IX and acknowledges the disproportionate rates of sexual harassment and violence suffered by the LGBTQ+ community. The Executive Order requires educational institutions to provide “appropriate support for students who have experienced sex discrimination; and to ensure that their school procedures are fair and equitable for all.”

President Biden also issued an executive order establishing a White House council on gender equity, an effort initiated under the Obama administration that was dismantled during the Trump presidency. The council, which will recommend a federal, government-wide strategy for advancing gender equity to the President, will focus on developing policies that prevent gender based violence and promote equity for Black, Latinx, and Indigenous women and girls.

Within the next 100 days, Secretary Cardona will propose policy changes that likely will affect the way colleges and universities are required to handle campus sexual misconduct and sex-discrimination allegations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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