On March 8, 2021, President Joe Biden signed the “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity,” making clear his administration’s intention to implement changes to the regulations issued on May 6, 2020 (effective August 14, 2020), by the U.S. Department of Education, regarding the handling of sexual misconduct allegations under Title IX of the Education Amendments of 1972.
The executive order reads in relevant part that “[i]t is the policy of [Biden’s] 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.” The executive order directs the secretary of education, in consultation with the attorney general of the United States, to “review all existing regulations, orders, guidance documents, policies, and any other similar agency actions … that are or may be inconsistent with [this] policy” within 100 days and to “issue new guidance as needed.”
The executive order criticizes and can be perceived as rejecting portions of the final regulations issued last year, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 85 Fed. Reg. 30026 (May 19, 2020), by including these rules within the items specified for review by the secretary of education. The executive order further instructs the secretary of education to “consider suspending, revising, or rescinding—or publishing for notice and comment proposed rules suspending, revising, or rescinding—those agency actions that are inconsistent with the policy set forth [in the executive order] as soon as practicable.”
The executive order also requires that the secretary of education consider taking additional enforcement actions to:
- “enforce the policy set forth in … [the executive order] as well as legal prohibitions on sex discrimination in the form of sexual harassment, which encompasses sexual violence”;
- “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”;
- “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”;
- “ensure that educational institutions are providing appropriate support for students who have experienced sex discrimination”; and
- “ensure that … school procedures are fair and equitable for all.”
This was not the first time during his first two months in office that President Biden addressed Title IX–related matters.
Previous Executive Order Expanding Title IX’s Prohibitions on Discrimination
On January 20, 2021, President Biden signed Executive Order 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” That executive order explicitly extended the holding of Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), to all federal laws prohibiting sex discrimination, including Title IX of the Education Amendments of 1972, the Fair Housing Act, and section 412 of the Immigration and Nationality Act.
In Bostock, the Supreme Court of the United States held that Title VII of the Civil Rights Act of 1964’s prohibition on sex discrimination included discrimination on the basis of gender identity and sexual orientation. After Bostock was decided, the U.S. Department of Education’s Office for Civil Rights issued several memoranda suggesting that it would not apply the holding of Bostock to Title IX.
Courts, on the other hand, began applying Bostock to relevant situations arising on campuses. For example, in Grimm v. Gloucester County School Board, No. 19-1952 (August 26, 2020), the U.S. Court of Appeals for the Fourth Circuit stated that it had “join[ed] a growing consensus of courts” holding that “Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender.” Thus, the executive and judicial branches were in conflict and, despite being coequal, legal decisions issued by courts of law ultimately held greater sway over K-12 and postsecondary institutions.
Executive Order 13988 provided much-needed clarity, making clear that “[u]nder Bostock’s reasoning, laws that prohibit sex discrimination—including Title IX of the Education Amendments of 1972 …, the Fair Housing Act …, and section 412 of the Immigration and Nationality Act … along with their respective implementing regulations—prohibit discrimination on the basis of gender identity or sexual orientation.”
The January 20, 2021 executive order commanded the heads of each agency to reevaluate their policies relating to sex discrimination and consider making changes consistent with the instruction of the executive order within 100 days.
Colleges and universities may want to prepare for the U.S. Department of Education to publish a new notice of proposed rulemaking (NPRM) on Title IX and proposed rules that materially differ from the versions adopted in May 2020 and made effective on August 14, 2020. This will be a historic, second comprehensive rewrite of Title IX regulations issued since 1975. In other words, institutions may want to make changes to policies and practices—and, potentially, standards—when the U.S. Department of Education issues guidance in accordance with these executive orders in the coming months, as well as an entirely new NPRM before the end of the term.