Biden Administration Proposes New Title IX Rules

The Biden administration announced proposed changes to Title IX that will extend the law’s protections to gender identity, “strengthen[ing] protections for LGBTQIA+ students who face discrimination based on sexual orientation or gender identity,” according to the Department of Education (DOE).

Title IX was passed into law in 1972 to prohibit sex-based discrimination in schools that receive federal funding, stating that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Among the most significant changes proposed by the Biden administration, schools would be required to investigate all forms of alleged sexual discrimination, not just sexual harassment. The policy would extend to pregnancy-related harassment and discrimination based on sexual orientation and gender identity.

Schools will also be urged to use a lower standard of evidence to determine guilt for accused individuals under the proposal, returning to the recommended standard first set by former President Barack Obama. Per the proposal, schools will still be allowed to use the higher “clear and convincing” standard in determining guilt during investigations, but only if they apply that standard to all other discrimination complaints.

The new guidelines also revoke the requirement that the accused and accuser participate in cross-examination at live hearings. Live hearings will still be allowed under the new policy, but colleges would need to appoint a campus “decision-maker” to evaluate evidence and students’ credibility.

The proposed changes must go through a public comment process before going into effect. The DOE also announced Thursday that it would soon issue a separate proposal addressing transgender students’ eligibility for particular athletic teams.

Fatima Goss Graves, president of the National Women’s Law Center, called the proposed changes to Title IX “a move toward affirming the rights of pregnant and parenting students and LGBTQI+ students to learn with safety and dignity.” She also urged the Biden administration to institute policies allowing transgender students’ participation in sports. 

Mildred Garcia, president of the American Association of State Colleges and Universities, said the proposals could go further.

“Equity in educational and professional opportunities has not yet been attained for individuals of all races, gender, income levels, or sexual orientation,” Garcia said. “It is our expectation that these proposed amendments to Title IX will get us closer to this important goal.”

Others, like Riley Gaines, a University of Kentucky swimmer who tied transgender swimmer Lia Thomas for fifth place at the NCAA championships, called the proposal a “complete 180 for the worst.”

“Rewriting Title IX and redefining what sex is, is taking away everything that sex has stood for the past 50 years, and everything that women have fought so hard to get, like equity and fairness, and equal opportunities,” she said. “This destroys that and the integrity of woman’s sports will be completely lost and a thing of the past.”

At an, Our Bodies, Our Sports rally in Washington D.C. on Thursday, which marked the 50th-anniversary of Title IX, former U.S. Rep. from Hawaii and presidential candidate Tulsi Gabbard bashed the proposed changes to the landmark legislation.

“It is the height of hypocrisy that as we stand here today, there are those who claim to be feminists that claim to be champions for woman’s rights, who are at the very same time, simultaneously denying that we exist, denying the fact that there is a woman that is biologically distinct from a man,” Gabbard said.  

The former congresswoman added that the Biden administration’s proposals “are seeking to erase the entire female sex, and reject the objective reality that there are biological and physiological differences between men and women. This is the height of disrespect, offense, and what at its core, is a hatred for women.”

If the Biden administration’s proposed changes take effect, it will be the second major rewrite of federal Title IX rules in two years. Betsy DeVos, the DOE secretary under former President Donald Trump, revamped the rules for the federal law in 2020. 

DeVos’ rules prioritized the constitutional due process rights of the accused, reshaping the way colleges handle allegations of sexual assault and harassment. Accused students were granted expanded rights to review and respond to the evidence against them. Students had the right to cross-examine one another through a representative at live hearings under DeVos’ rules.

DeVos’ policy also narrowed the definition of harassment, scaling back the number of cases colleges are required to address. Some campuses have seen sharp decreases in Title IX complaints from students since DeVos’ policies took effect. 

The changing Title IX rules every time the party in charge of the White House changes is challenging schools to remain flexible and constantly adapt their policies. 

“It doesn’t serve anybody’s interest to have this ping-pong effect of changing rules every five years,” said S. Daniel Carter, a campus security consultant and president of Safety Advisors for Educational Campuses. “That’s just not a good way to get things done. It’s very difficult for everyone involved.”