The President’s Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity

On March 8, 2021, President Biden signed an Executive Order that, among other things, directed the Department of Education (ED) to “review all of its existing regulations, orders, guidance, and policies to ensure consistency with the Biden-Harris Administration’s policy that students be guaranteed education free from sexual violence. It also directs ED to specifically evaluate the Title IX regulation issued under the previous administration and agency action taken pursuant to that regulation, to determine whether the regulation and agency action are consistent with the policies of the Biden-Harris Administration.”

Additionally, and consistent with the President’s January 21, 2021 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, this new EO notes the Administration’s policy that all students should be guaranteed an educational environment free from discrimination on the basis of sex “including discrimination on the basis of sexual orientation or gender identity.” The EO directs the Secretary of Education to consider taking additional enforcement actions consistent with this policy, including actions “to 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” and “to account for the significant rates at which students who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ+) are subject to sexual harassment.”

A few notes:

• While we have suspicions of elements of the 2020 Final Rule that will be removed, nothing has yet changed and, until it does, institutions are bound by the Final Rule (for cases that arise after August 14, 2020). We have reason to understand that the Department will be seeking feedback and guidance from experts in the field and, while nothing is certain, believe this process will use the more normal timeframes we have come to expect in the past to come into compliance.
• Whenever any document like this comes out, we receive “frequently asked questions” which we will answer here:
  • Is there anything different we need to do based on today’s announcement? No.
  • When new Regulations or Guidance comes out, will the SCI update its guidance? Yes.
  • Will SCI update the Model Policies? Yes.
  • Will SCI update the Trainings? Yes
  • Will SCI members be charged anything extra for these updates or for any additional trainings or webinars? No.

We will keep our eyes on the potential changes and keep our members up to date with accurate, plain language, guidance on any changes to come.