Member Article

On Monday, March 8, 2021, President Joe Biden issued a new executive order, which will require a new look at how schools address sex discrimination. The executive order states the president’s policy that: “All students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”

The prohibition of sexual discrimination, sexual harassment, or sexual violence is, of course, not new. It is the inclusion of “discrimination on the basis of sexual orientation or gender identity” that makes this statement significant and widens a departure from the Trump administration’s treatment of the issue.

The order will require a review of all of the U.S. Department of Education’s regulations, orders, guidance documents, policies, and any other similar agency actions—including regulations issued pursuant to Title IX specifically—for the purpose of ensuring that those actions are consistent with the president’s stated policy. The policy change would not appear to affect the procedural changes made to investigations of sexual harassment or discrimination, but it certainly appears to change the definition of what the administration believes constitutes sexual harassment or discrimination.

The executive order is not entirely unexpected and does not affect what courts have already said about Title IX. On that issue, the U.S. Court of Appeals for the Fourth Circuit, whose opinions are binding on federal courts in West Virginia, has already held that a policy which required transgender students to use bathrooms consistent with the gender stated on their birth certificates constituted sexual discrimination in violation of Title IX. The president’s policy might have been persuasive to a court considering a similar issue (and indeed, the Fourth Circuit considered a prior Dear Colleague letter issued during the Obama administration), but it would not overrule the court.

President Biden has previously signaled his administration’s views were different from those of the Trump administration. He issued an executive order his first day in office stating essentially the same policy, but it was directed at all government functions—not just education. And in February, the United States formally withdrew its support for four high school athletes in Connecticut who were challenging a state rule that required schools to permit athletes to participate in sports consistent with their gender identity, which included the withdrawal of an enforcement action against the relevant school districts and the state athletic conference.

Thus, schools should be aware the United States’ current policy is that discrimination against students based on general identity or sexual orientation constitutes sexual discrimination in violation of Title IX.

Should you have any questions on this issue or others, please contact a member of Dinsmore & Shohl's Education practice group.