On March 8, 2021, President Biden issued an Executive Order related to Title IX, sex discrimination, and sexual harassment in schools. While the Executive Order does not immediately change the existing Title IX landscape — and schools are still required to follow existing Title IX regulations at this time — it paves the way for an eventual suspension, revision, or rescission of the new Title IX federal regulations that were released in May 2020 and became effective on August 14, 2020.
The Executive Order sets forth the Biden Administration’s policy on sex discrimination in the educational environment, which policy provides that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including sexual harassment and discrimination on the basis of sexual orientation or gender identity.
In order to implement the Biden Administration policy, the Executive Order requires that, within 100 days of the Order, Secretary of Education Miguel Cardona review all existing regulations, orders, guidance documents, policies, and any other similar agency actions that may be inconsistent with the Biden Administration policy. This includes the May 2020 Title IX Regulations and any related Department of Education guidance.
Notably, Secretary Cardona is also required to, as soon as practicable, issue new guidance as needed on the implementation of the May 2020 Title IX Regulations to make the regulations consistent with governing law and with the Biden Administration policy. Further, Secretary Cardona must consider suspending, revising, or rescinding, any agency actions—including the May 2020 Title IX Regulations—that are inconsistent with the Biden Administration policy on sex discrimination and sexual harassment.
In addition to a review of all agency actions related to sex discrimination and sexual harassment, the Executive Order requires Secretary Cardona to consider taking additional actions to enforce the Biden Administration policy on sexual harassment, specifically accounting for the significant rates at which LGBTQ+ students are subject to sexual harassment and ensuring that school procedures are fair and equitable for all.
Although the Executive Order does not provide any immediate changes to the way school districts, colleges and universities must handle sexual harassment complaints, the Executive Order provides a roadmap for what may be significant changes to the Title IX regulations. It is important, however, that schools continue to follow the requirements in the May 2020 Title IX Regulations and handle sexual harassment complaints under the grievances process outlined in those regulations, until new guidance and/or regulations changes are issued and become effective.