On his first day in office, President Biden signaled that he would follow through on a campaign promise to revamp the prior administration’s rules and regulations pertaining to civil rights for the LGBTQ community and Title IX’s prohibition against sexual discrimination, specifically sexual harassment in educational programs and activities.ⁱ He did this by issuance of a January 20, 2021 Executive Orderⁱⁱ that directed federal agency heads to review all agency actions administered under Title VII of the Civil Right Act pertaining to employment discrimination as well as “other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”  In support of this directive, the President referred to the 2020 United States Supreme Court decision in Bostock vs. Clayton County^iv in which the Court held that Title VII’s statutory language prohibiting discrimination “because of sex” covered discrimination based on sexual orientation.  

In March 2021, the President doubled down on his promise when he issued another Executive Order directly addressing Title IX of the Civil Right Act^v titled “Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.”^vi  In the order, the President made it clear that by discrimination on the basis of sex, he meant sexual harassment and that he included sexual orientation and sexual identity as types of discrimination covered by the law.  The order directs the Secretary of Education to undertake a review of all agency actions inconsistent with the administration’s policy of preventing sexual harassment in schools, specifically a review of the previous administration’s May 2020 regulations pertaining to sexual harassment. These regulations, effective August 14, 2020,^vii had pointedly rescinded guidance from the Obama Administration as to how covered educational institutions should handle sexual harassment complaints and made significant substantive changes pertaining to sexual harassment procedural requirements. 

Consistent with the Executive Orders, on June 21, 2021, the Department of Education announced the filing of a Notice of Interpretation stating that the Department’s Office of Civil Rights (OCR) would construe Title IX consistent with the Bostock decision and include gender identity and sexual orientation as protected by the law against sex discrimination in educational programs.^viii In December of last year, the Department announced that it would be filing new administrative rules/regulations pertaining to the “grievance procedures that provide for the fair, prompt, and equitable resolution of reports of sexual harassment and other sex discrimination; and to addressing discrimination based on sex, including sexual orientation and gender identity, in educational environments.”^ix  Following a year and a half of stakeholder input and a nationwide public hearing^x, in July of this year, the Biden administration filed new proposed administrative rules for implementation of Title IX pertaining to the vital area of sex harassment and assault in colleges and universities and K-12 schools.^xi

The new rules if finally adopted after a public comment period will replace controversial rules adopted during the Trump administration.  Largely reverting to policy offered as informal guidance during the Obama administration, the proposed new rules make numerous significant changes in how covered educational institutions (those with programs and activities receiving federal funds) should procedurally handle complaints of sexual harassment and/or assault. Among the significant changes proposed are the following:

1.  Sex Based Harassment Definition Broadened:  The proposed new definition expands the scope of prohibited conduct to include sex harassment, harassment based on sex stereotypes, sex characteristics, pregnancy, or related conditions, sexual orientation, and gender identity.  The Trump administration’s definition had narrowed the scope of prohibited conduct to behavior “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to educational programs or activities.”  The proposed change provides new protections for LBGTQ students facing discrimination based on sexual orientation and gender identity.  However, the administration’s statement on the rules provides that separate rules will be proposed addressing student’s rights to participate in male or female athletic events, a subject of growing interest among parents and educational institutions.

2.  Applies to Hostile Environment and Off Campus Conduct:  The proposed rules require covered educational institutions to address conduct that creates or contributes to a hostile environment in any of their programs and activities including conduct a) occurring in any building owned or controlled by a student organization officially recognized by a postsecondary institution; and b) occurring off campus when the actor is a representative of the educational institution or engaged in conduct under the institution’s disciplinary authority.  The rule’s scope extends to this conduct even if it occurs outside of the United States.  The current rules do not require conduct contributing to a hostile environment to be addressed if occurring outside of the educational institution’s specific programs or activities or outside of the United States.  The proposed rules are likely to increase the number of cases colleges will be required to investigate and resolve due to the rule’s broader scope.

3.  Expands Duty to Respond to Sex Discrimination:  The current rules only require a response to possible sexual harassment when there is “actual knowledge.” Under existing rules, at post-secondary institutions only employees with authority to initiate corrective measures can have actual knowledge, thus implicitly requiring the filing of a complaint by the alleged victim.  The proposed rule makes clear that the duty to operate education programs and activities free from prohibited sex discrimination is fulfilled only when the educational institution takes prompt and effective action to end such discrimination, prevent its recurrence and remedy its effects.  This will serve to broaden the responsibilities of all teaching or advising employees of the college/university to report violative conduct any time they are aware of its existence, regardless of whether a formal notice or complaint has been filed. This significantly broadens the scope of the mandatory reporting requirements from current law.