On Monday, March 8, 2021, President Biden signed an Executive Order to ensure that all students are “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.” Such a right is codified, in part, in Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., which prohibits discrimination on the basis of sex in education programs or activities receiving Federal financial assistance.
Within 100 days of the date of this order, i.e. June 15, 2021, President Biden’s Administration will “review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that are or may be inconsistent with” the guarantee of an environment free from discrimination on the basis of sex, as codified in Title IX. The Biden Administration will consider suspending, revising, or rescinding — or publishing for notice and comment proposed rules suspending, revising, or rescinding — those agency actions that are inconsistent with Title IX.
Not only is the U.S. Secretary of Education charged with enforcing prohibitions on sexual harassment, which includes sex discrimination in the form of sexual harassment, as well as sexual violence, but he must also ensure the prohibition of “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.” The Secretary of Education must address the significant rates at which those who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ+) are subject to sexual harassment and ensure that educational institutions are providing appropriate support and equitable school procedures for all.
The School Law Practice Group will monitor the work of the Biden Administration in accomplishing the goals of this Executive Order and will continue to update you as the process evolves.