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President Biden Has Issued Two Executive Orders Regarding His Administration’s Policy On Sex-based Discrimination
On January 20, 2021, President Joe Biden issued Executive Order 13988 that states all persons should receive equal treatment under the law regardless of their gender identity or sexual orientation. Additionally, on March 8, 2021, President Biden issued Executive Order 14021 that states students should be guaranteed an educational environment free from discrimination based on sex.
January 20, 2021, Executive Order states that based on the Supreme Court’s ruling in Bostock v. Clayton County (2020) 140 S. Ct. 1731, Title VII’s prohibition on discrimination “because of . . . sex” covered discrimination based on gender identity and sexual orientation, and similarly, other laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972 and its implementing regulations — also prohibited discrimination based on gender identity or sexual orientation as long as the laws did not contain “sufficient indications to the contrary.”
January 20, 2021, Executive Order states it is the policy of the Biden Administration to prevent and combat discrimination based on gender identity or sexual orientation and to fully enforce Title VII and other laws that prohibit discrimination on these bases. Accordingly, on January 20, 2021, the Executive Order directs all federal agencies to review all existing orders, regulations, guidance documents, policies, programs, or other agency actions (agency actions) that may be inconsistent with this policy. If the agency identifies an inconsistency, it must revise, suspend, or rescind such agency actions or promulgate new agency actions within 100 days in order to fully implement statutes that prohibit sex discrimination according to the policy stated in the Executive Order.
March 8, 2021, Executive Order states it is the policy of the Biden Administration to guarantee an educational environment free from discrimination based on sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination based on sexual orientation or gender identity.
March 8, 2021, Executive Order directs newly sworn-in Secretary of Education Miguel Cardona to review agency actions, including specifically the federal Title IX regulations enacted on August 13, 2020, that are or may be inconsistent with the policy set forth above within 100 days of the March 8, 2021, Executive Order. This order also directs Secretary Cardona to consider “suspending, revising, or rescinding — or publishing for notice and comment proposed rules suspending, revising, or rescinding” agency actions that are inconsistent with the stated policy as soon as practicable. Additionally, on March 8, 2021, the Executive Order directs Secretary Cardona to consider taking additional enforcement actions to ensure educational institutions provide appropriate support for students who identify as lesbian, gay, bisexual, transgender, and queer who experienced sex discrimination.
Read January 20, 2021, Executive Order here.
Read the March 8, 2021, Executive Order here.
On January 8, 2021, the U.S. Department of Education issued a memo stating Title IX’s prohibition against discrimination based on sex did not confer protections based on transgender status or sexual orientation. LCW believes this memo is inconsistent with the policy identified on January 20, 2021, Executive Order, and expects the Department will revise or rescind this guidance. LCW anticipates significant changes to the Title IX regulations that became effective in 2020. However, it is still unclear how or when the Biden Administration will change these regulations. The U.S. Department of Education could issue new regulations, issue informal guidance as we saw with the 2011 Dear Colleague Letter or 2014 Question and Answer document, or even push new federal legislation. The Biden Administration is unable to withdraw the current regulations. Rather they must amend the current regulations. Amending new regulations or creating and passing new legislation takes time.
Until the Biden Administration makes any changes, LCW strongly recommends that educational entities follow the current federal Title IX regulations. It would be risky for an educational entity to refuse to adopt policies and procedures to implement the current Title IX regulations even though we suspect they will change. When Title IX obligations change whether, through regulatory amendments, guidance, or the like, LCW will work quickly to alert our clients and explain how the changes affect policies and procedures.
Remember, an educational entity’s obligation to address sex- and gender-based harassment and discrimination stem from a variety of sources under federal and state law. If your school, college, or university needs assistance, please contact one of our five offices statewide. Learn more about LCW’s Title IX compliance training programs and other resources by visiting this page.