On International Women’s Day, March 8, 2021, President Joseph Biden signed two executive orders to promote gender equity and equality through the creation of a Gender Policy Council and through a policy that guarantees an education free from discrimination based on sex, sexual orientation, and gender identity.

Executive Order on Establishment of the White House Gender Policy Council

The Executive Order on Establishment of the White House Gender Policy Council establishes a Gender Policy Council, which is a reformulation of an Obama-era office.  The Council is tasked with, among other items, implementing policies and programs to combat systemic bias and discrimination, including sexual harassment, and to address structural barriers to women’s participation in the workforce, wage and wealth gaps, and caregiver needs of American families.  Moreover, in recognition that the COVID-19 pandemic has disproportionality affected women and girls, the Council is to draft recommendations to specifically address such effects, and is to especially consider the experiences and needs of women and girls in underserved communities.

The Council is to develop and submit a strategy to address the above concerns within 200 days of the President signing the order.  Each year thereafter, the Council will submit an annual report advising the President on the progress achieved in implementing the strategy.  A version of this annual report will be published for the public.

Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity

The Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity establishes a policy that all students be guaranteed an education free from discrimination on the basis of sex, sexual orientation, and gender identity, including discrimination in the form of sexual harassment and sexual violence.  The order directs the Secretary of Education to review all existing regulations, orders, guidance documents, and policies that are inconsistent with the aforementioned policy within 100 days of the President signing the order.

In such review, the Secretary of Education is specifically tasked with reviewing the final rule entitled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 85 Fed. Reg. 30026, issued on May 19, 2020, to determine whether it is consistent with the above-identified policy, as well as Title IX.  This final rule was implemented by the former Secretary of Education and, among other changes, narrowed the definition of sexual harassment and expanded the due process rights of those accused of sexual assault or harassment.

The order directs the Secretary to consider suspending, revising, or rescinding any agency actions inconsistent with the above-mentioned policy.  As such, colleges and universities should anticipate new Title IX guidance that changes the way colleges and universities are expected to handle allegations of sexual misconduct and sex discrimination.

The above executive orders are but two in a line of executive orders signed by President Joseph Biden intended to combat discrimination, address inequities, and promote diversity and inclusion, as evidenced by the previously signed executive orders entitled “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” and “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”