On March 8, 2021, President Biden issued two separate executive orders aimed at reflecting in enforceable law his stated campaign commitment to promote gender equity.
The first Executive Order concerns the new administration’s intent to reverse course on Title IX regulations concerning campus sexual assault and harassment. Title IX is the federal law prohibiting sex discrimination in education, and the Title IX regulations at issue were finalized in May 2020. They changed prior Department of Education policy regarding sexual harassment on campus by, among other things:
- Redefining what constituted sexual harassment;
- Permitting educational institutions to choose the standard of proof in sexual harassment/assault cases (clear and convincing or preponderance of the evidence);
- Eliminating the concept of constructive notice (“should have known”) in place of one requiring “actual knowledge” for intentional discrimination;
- Establishing basic requirements for the grievance process adjudicating sexual harassment/sexual assault claims, which at a minimum required for example 1) an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence; 2) assessing credibility based on factor(s) other than a person’s status as a complainant, respondent, or witness; 3) implementing a presumption that the respondent is not responsible for the alleged conduct until a determination at the conclusion of the grievance process, as well as other procedures; and
- Providing rights to notice, an advisor and a hearing of a sexual assault complaint, in the case of post-secondary institutions. See VAC’s earlier blog post here for further details.
Biden now seems intent to have his say on these Title IX issues. This will likely lead to further changes to the Title IX regulations.
To be clear, Biden’s new Executive Order asserts the administration’s broad policy “that all students….be guaranteed an educational environment free from discrimination on the basis of sex, including…sexual harassment [and]….sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”
It calls for the Secretary of Education (consulting with the newly affirmed Attorney General Merrick Garland) to review existing DOE regulations, orders, and guidance within 100 days, to ensure they are consistent with this policy statement.
The Executive Order also specifically requires the Education Secretary to review the Title IX regulations finalized under Trump. It clearly states that the Secretary “shall consider suspending, revising, or rescinding…those agency actions that are inconsistent with the policy” statement.
In the meantime, the earlier Title IX regulations will remain in place.
Biden’s second executive order establishes a White House Gender Policy counsel, fulfilling a promise Biden made before he was inaugurated.
This all comes shortly after Biden delayed the effective date of Department of Labor regulations regarding independent contractor status and tip credit rules that were also finalized during Trump’s presidency.
These latest executive actions reflect a continuing trend by the Biden administration to undo and/or revise many of the Trump’s most controversial policies. Individuals, educational institutions, and business alike should monitor these and other legal developments, of which we should expect to see more, and engage legal counsel as appropriate to ensure compliance with these ever-changing rules.