NAICU Washington Update

Biden Administration Reexamines Title IX Policies

April 09, 2021

This week, the Department of Education’s Office for Civil Rights (OCR) announced that it is launching a comprehensive review of the agency’s Title IX regulations, guidance, and related policies, particularly as they relate to campus sexual harassment and assault. Meanwhile, the Department of Justice (DOJ) released guidance concluding that Title IX prohibits sexual orientation and gender identity discrimination. 

Here are summaries of each agency’s action:

Department of Education’s OCR Announcement

OCR’s announcement comes in response to President Biden’s Executive Order (EO) directing the Secretary of Education to review the Department’s Title IX policies, including the Trump Administration’s new regulations on campus sexual assault, to confirm that such policies are consistent with the Biden Administration’s goal of ensuring that all students are guaranteed an educational environment free of sex discrimination. OCR emphasized, however, that the Title IX regulations issued by the Trump Administration remain in effect. 

As part of its comprehensive review, OCR announced that it will be holding a series of public hearings in the coming weeks to gather feedback from stakeholders. OCR also plans to issue a new Q&A document to provide guidance on Title IX responsibilities under the current Title IX rules, including areas of potential flexibility for educational institutions. 

Ultimately, OCR anticipates that it will undertake a new rulemaking effort to rewrite the sexual harassment regulations, which may include additional provisions related to discrimination on the basis of sexual orientation and gender identity. The Department did not provide a specific timeline regarding when changes to the regulations or guidance might occur.  

DOJ Guidance

Similarly, DOJ’s guidance comes in response to President Biden’s EO instructing federal agencies to ensure that federal laws that prohibit sex discrimination are interpreted to bar discrimination on the basis of sexual orientation and gender identity. The guidance examines the Supreme Court’s decision in Bostock v. Clayton, which held a federal employment discrimination law that prohibits sex discrimination extends to bar discrimination on the basis of sexual orientation and gender identity. DOJ concludes that Title IX also prohibits discrimination on such grounds. 

According to DOJ, “whether allegations of sex discrimination, including allegations of sexual orientation or gender identity discrimination, constitute a violation of Title IX in any given case will necessarily turn on the specific facts, and therefore this statement does not prescribe any particular outcome with regard to enforcement.” The guidance, however, does not address how the agency’s interpretation should be applied to transgender students’ participation in athletics and access to shared facilities such as restrooms, though more Biden Administration guidance on these issues may eventually be forthcoming. 

MORE News from NAICU