Biden’s sex discrimination order likely a precursor to Title IX changes

Dive Brief:

  • One of President Joe Biden’s first executive actions affirms that gender identity and sexual orientation are protected classes under federal sex discrimination laws, a move likely to have ramifications for colleges.

  • Biden signed an executive order Wednesday directing federal agencies to review regulations, policies and other actions and determine if they clash with the administration’s interpretation, which was backed by a recent U.S. Supreme Court ruling. 

  • The Education Department under former President Donald Trump pursued a massive regulatory overhaul of Title IX, the federal law barring sex discrimination in educational settings, and observers believe Biden’s order could set up a reversal of that rule.

Dive Insight:

A landmark Supreme Court ruling last year, Bostock v. Clayton County, found that employees can’t be discriminated against for their sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964.

The Trump administration largely disregarded that decision. The Education Department, in the final weeks of Trump’s term, released a memo stating Bostock did not apply to Title IX. However, several federal courts have held transgender students are protected under the sex discrimination law.

Biden’s executive order, among the slew he signed his first day in office, cites Bostock. It states than within 100 days, the agencies must develop plans to ensure their policies and procedures protect individuals from sexual orientation and gender discrimination. 

Laura Dunn, an attorney who specializes in Title IX and represents sexual assault survivors, said colleges would have been able to anticipate Biden‘s stance on this issue, especially given the Bostock ruling.

She said the order is likely the first signal that the administration will revamp Title IX rules. Former Education Secretary Betsy DeVos, to the chagrin of survivor advocacy groups and broad contingents of higher ed, finalized a regulation last year narrowing the scope of sexual violence colleges would need to investigate. It also created a pseudo-judicial system for hearing those cases. 

Biden is expected to focus first on passing more coronavirus relief. So Dunn thinks the administration will start to seek Title IX changes by the fall of the next academic year .

In the meantime, the Ed Department could scale back enforcement of the current regulation, effectively rendering it moot until Biden officials develop a substitute, said Jake Sapp, deputy Title IX coordinator and compliance officer at Austin College, in Texas, who also tracks Title IX-related legal issues. Outside of the remote chance a lawsuit overturns the DeVos-era rule, Sapp said the only way to get rid of it is to replace it.

Biden also on Wednesday rescinded Trump’s executive order restricting diversity training for federal employees and grant recipients. Trump’s measure spurred confusion among colleges as to how they could teach inclusion efforts. A federal judge had already largely blocked the order from affecting colleges.

He additionally proposed new immigration legislation that could create a more hospitable environment for unauthorized and international students and provides a clearer path to citizenship. Biden also rolled back Trump immigration policies, namely a travel ban from some majority-Muslim countries.

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