Executive Order Sets Title IX Priorities: What to Expect & How to Make Your Institutional Voice Heard

Types : Alerts

Less than two months after his inauguration and in the midst of a global pandemic, a workforce in crisis, threats of domestic terrorism and rising foreign diplomacy challenges, President Joseph Biden sent a clear message about his priorities and his ability to multitask.

On International Women’s Day, the President issued an Executive Order (“Order”) demanding review of current Title IX guidance and regulations, guaranteeing a dual-agency assessment of existing policies and overhaul, if not complete reversal, of the highly-controversial Trump Administration Title IX Regulations.

The Order begins with a clear statement of 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.” In its second sentence, the Order dispelled prior Office of Civil Rights guidance attempting to distance Title IX from the Supreme Court’s landmark Ruling in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), which held discrimination on the basis of gender identity and sexual orientation in the workplace violates Title VII.

In concert with this mission statement, the Order requires that:

• The Secretary of Education in consultation with the Attorney General shall, within 100 days, review existing regulations and guidance that are inconsistent with the Administration’s policies;
• As a part of that review, the Secretary of Education shall review the Trump Administration’s Title IX Rule and related guidance for consistency with governing law;
• The Secretary of Education shall consider suspending, revising, or rescinding – or publishing for notice and comment proposed rules for suspending, revising or rescinding, agency actions inconsistent with the Administration’s stated objectives.
• The Secretary of Education shall consider additional enforcement actions to ensure protections are in place to prohibit discrimination against students who identify as LGBTQ+.

The Order leaves space for emergency guidance to correct via suspension what President Biden, the primary architect behind Obama-era Title IX guidance, sees as the most troubling tenets of current regulations, and busy time before the potentially lengthy rulemaking process.

The federal rulemaking process requires the Department of Education to provide notice via publication in the Federal Register of its intended promulgation, including the time, place and nature of the rulemaking proceedings, legal authority in support of the proposed rule, and the terms. The agency must allow “interested persons” opportunity to publicly comment, typically 60 days. The agency is required to review the public comments and respond to “significant” comments received and may make changes to the proposal based on those comments.

We will continue to track and monitor the Biden administration’s process in developing new Title IX regulations.  We are offering assistance in your institution’s preparations for these new potential regulations, such as preparing and submitting comments to the proposed rule.

Please join us on April 2, 2021 as we discuss this new Order during an informative symposium for Montgomery McCracken clients and prospective clients. For more information and to register, please click here.

If you have any questions regarding this ongoing process, your Title IX requirements and obligations, or your policies and procedures, Ashley R. Lynam or Kacie E. Kergides of Montgomery McCracken’s Institutional Response and Sexual Misconduct Liability groups are available for assistance.