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President Biden Requires Review of Title IX Regulations, Gender Equity Policies

President Biden celebrated International Women’s Day 2021 by signing two executive orders targeted at promoting and ensuring gender equity. The “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity” signals the Administration’s commitment to reviewing the Title IX-related regulations, orders, guidance documents, and agency actions set forth by the Department of Education under the Trump Administration.

The order grants President Biden’s Secretary of Education, Miguel Cardona, 100 days to assess existing Title IX documents and policies, including the controversial regulations passed under former Secretary Betsy DeVos in May 2020. Those regulations, which went into effect in August 2020, established new rules for how educational institutions should investigate, adjudicate, and respond to instances of sexual violence. The 2020 regulations expanded protections for students accused of sexual assault and narrowed the statutory definition of conduct that constitutes actionable sexual harassment. Today’s order instructs Secretary Cardona to “consider suspending, revising, or rescinding” any agency actions, including the regulations, that may be inconsistent with the policy set forth in the order and to “issue new guidance as needed.”

Because the DeVos Title IX regulations were passed using statutory rule-making processes, they may face a different pathway for potential revocation than other sub-regulatory agency guidance that Cardona can more readily replace. It is not immediately clear whether or when the current Title IX regulations will change materially, so educational institutions should continue to follow the sexual harassment policies and procedures they enacted in August 2020 for now. The existing regulations remain in effect as controlling federal law unless they are altered.

President Biden’s Administration endorses the notion that all students should be protected from discrimination on the basis of sex, including on the basis of sexual orientation or gender identity. To that end, the order acknowledges “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.” The order directs Secretary Cardona to consider taking additional actions to account for “intersecting forms of prohibited discrimination,” to ensure that educational institutions are providing sufficient and appropriate support for students who experience sex discrimination, and to ensure that school procedures are fair and equitable for all.

In addition to ordering the Title IX policy review, President Biden signed a second order establishing a White House Gender Policy Council. The Council will assess domestic and foreign policies and programs to help ensure “the full participation of all people—including women and girls.” It will address such issues as sexual harassment, wage and wealth gaps, participation in STEM fields, health care, and global gender equity.

Copyright ©2022 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XI, Number 71
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About this Author

Daniel Cohen Education Lawyer Nelson Mullins
Partner

Dan's practice encompasses decades of experience working with educational institutions and their athletics departments.

Dan has counseled universities, colleges, medical institutions, and other educational institutions regarding Title IX athletics and sexual misconduct matters, athletics strategic planning, NCAA compliance, litigation, labor and employment, school and university law, and sports law.

With more than 20 years’ experience in higher education athletics matters, Dan's Title IX practice is extensive. He performs athletics audits and compliance reviews, develops...

404.322.6721
Alexis “Lexi” Trumble  Education Lawyer Nelson Mullins
Associate

Alexis “Lexi” Trumble is a member of the school & college law practice and focuses on a variety of aspects of litigation and education law, with an emphasis on the myriad areas of federal Title IX compliance. She brings to her practice four years as a collegiate student-athlete and leverages that experience to advise educational institutions and their athletics departments. Ms. Trumble draws from these real-world experiences to help counsel colleges and universities across the country on legal and compliance matters such as Title IX athletics and sexual misconduct,...

404.322.6527
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