“Our goal is to give full effect to the law’s reach and to deliver on its promise to protect all students from sex-based harassment and discrimination,” said Education Secretary Miguel Cardona. “Every student deserves to learn free from discrimination and harassment, regardless of their sex, sexual orientation or gender identity.”
Thursday’s announcement was a notice of proposed rulemaking, the starting point of a lengthy process to create new guidelines on how the Education Department interprets and enforces Title IX. They do not require sign-off from Congress.
Title IX, signed into law by President Richard Nixon in 1972, ushered in a golden age for women’s sports, vastly increasing opportunities in athletics. It also has provided recourse for victims of sexual assault or harassment, outlining how federally-funded schools should handle accusations and protect victims.
And now, the Biden administration wants to use to cement protections for transgender students. If the proposal is realized, it would compel schools to accommodate transgender students by allowing them to use bathrooms that align with their gender identity, ban bullying based on their gender identity and ensure they are addressed by their correct pronouns. Schools that fail to rectify the problem are subject to investigations and risk losing their federal funding.
The moves come as conservatives across the country fight to exclude transgender students from sports, to outlaw gender-affirming medical treatments and to purge libraries of books with LGBTQ characters. As of March, state legislators had filed over 200 bills seeking to erode the rights of transgender students or restrict discussion about LGTBQ issues in classes.
Conservatives reject this interpretation, saying that discrimination against transgender students is not a violation of Title IX and have argued in lawsuits that certain accommodations — like permitting transgender students to use bathrooms that align with their gender identity — violates the privacy of their cisgender classmates.
The Obama administration interpreted the law in the same way as the Biden administration now proposes to do, issuing guidance in 2016 directing schools to accommodate transgender students in bathroom, locker rooms and classrooms. It sparked a flurry of legal challenges from conservative states who said the administration had overreached.
But the administration Thursday sidestepped one of the most heated debates, saying the new rules would not deal with whether transgender students should be permitted to participate in sports. That fight would be saved for another rulemaking process, the Education Department said. Eighteen states have banned transgender athletes from sports, with many of those restrictions passing in the last year, and creating a rule would have put schools in those states in conflict with federal law.
As a candidate for president, President Biden promised to put a “quick end” to the DeVos regulation if elected, saying it gave colleges “a green light to ignore sexual violence and strip survivors of their rights.”
The proposed rules would again shift how colleges and universities are required to handle complaints of sexual harassment and sexual assault. Under President Barack Obama, the Education Department issued guidance in 2011 pushing for systems to encourage sexual assault survivors to report such incidents they experienced in college.
Surveys have shown that sexual harassment and assault is widespread on college campuses, and that most of it goes unreported. In 2019, a survey of students at 33 universities found that one-quarter of undergraduate women had been touched or penetrated without their consent.
The Trump administration, asserting that Obama had made the systems for judging complaints unfair, sought to bolster due-process protections for those accused of sexual assault. A key provision in rules established under Trump in 2020 was that colleges must provide a live hearing to adjudicate sexual assault complaints. In those venues, the accused would be able to cross-examine witnesses — an alleged rapist, for example, might be able to interrogate a victim.
Now, the Biden administration is proposing to eliminate the live-hearing requirement. Colleges would be allowed to use them if they desire.
“The vast majority of schools were not conducting live hearings before 2020,” a senior Education Department official said Thursday. “It is clear to us that the live hearings were not essential” to ensuring “a fair process.” The administration did not authorize the official to be quoted by name.
Advocates for the accused say live hearings are crucial to ensuring fair outcomes in campus-based processes conducted entirely outside the criminal court system.
“Live hearings and cross examination were almost the whole ballgame for respondents,” said Justin Dillon, an attorney based in D.C. who frequently represents those accused of sexual misconduct. “And schools are now free to eliminate those. That is what I worry about.”
The proposal also expands what conduct counts as sexual harassment, undoing the narrower definition established by the Trump administration.
Some of the Biden proposals, however, would appear to keep key Trump regulations intact. The rules would continue to give schools the option to use informal resolution of sex discrimination complaints. Dillon said he was “pleasantly surprised” the Biden administration did not move to ban informal resolutions.
Terry W. Hartle, senior vice president for the American Council on Education, which represents university presidents, said colleges do not know enough yet about the fine print to respond to the proposal. “In government regulation, the precise wording is everything,” Hartle said. He predicted intense public scrutiny. “Any changes are going to attract controversy,” he said.
Laura Meckler and Emily Giambalvo contributed to this report.
