Progressive Title IX Rule To Go into Effect by August 1

After three delays, the U.S. Department of Education issued President Joe Biden’s expansive — and final — Title IX rule on April 19.

Experts say the rule is groundbreaking in its sweeping definition of sex-based discrimination and a provision protecting people with “pregnancy or related conditions.” Title IX is the law that bans sex-based discrimination and offers protection from sexual assault and harassment in federally funded K–12 schools and colleges, which must implement the new rule by August 1.

The key new language in the Biden Title IX rule bars “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

The addition of “pregnancy or related conditions” means schools must not only offer pregnant people reasonable accommodations for breastfeeding, but they must also protect them from harassment for having had an abortion or a miscarriage, said Jennifer Smith, a partner with the Chicago law firm Franczek P.C., and head of the firm’s education practice group.

Perhaps not coincidentally, the Biden administration issued a new rule on April 22 that prohibits doctors, insurers, and other health care providers from disclosing health information to state officials who are looking to investigate, file a lawsuit against, or prosecute a patient or provider. This will protect the privacy of women who cross state lines to legally end a pregnancy and those who meet their state’s exceptions to abortion bans.

Though challenges from opponents are expected, one expert said there appear to be no solid grounds on which the rule will be overturned in the courts. “There is good due process in place in this Title IX rule. We are not seeing a strong basis on which to challenge it,” said Saunie Schuster, president of the Association of Title IX Administrators and a partner with TNG Consulting, specializing in First Amendment rights.

The U.S. Department of Education, which oversees Title IX, previously stated that the rule’s final issuance was delayed because officials had to scrutinize hundreds of thousands of public comments that it had received. (Read “Repeated Delays Stall Title IX Progress” in the SWE State of Women in Engineering issue.)

The Education Department left unresolved a second, separate rule related to transgender students’ participation in school sports. Experts say that issue will likely be delayed until after the November 5 presidential election because it would further galvanize social conservatives, who have introduced legislation to roll back trans rights.

One of the key changes that is encouraging to equal rights advocates defines sexual harassment, which can include sexual assault, as having to be sufficiently severe or pervasive to merit action. The Trump administration’s Title IX regulations, which remain in place until Biden’s regulations are implemented, define harassment as needing to be sufficiently severe, pervasive, and objectively offensive to meet the definition of Title IX sexual harassment. The change more broadly defines harassment so that, in certain cases, it may consist of one incident.

The rule also mandates yearly Title IX training and clearly identifies a mandatory reporter — the person required to report alleged sexual harassment or retaliation incidents to the Title IX coordinator, said Schuster.

Kel O’Hara, senior attorney for policy and litigation for Equal Rights Advocates, a national civil rights advocacy organization, pointed out that the new Title IX rule requires schools to take “prompt and effective action” when a complaint is made.

“To be prompt and effective, you have to act quickly enough to make a difference,” they said. “These yearslong investigations [that often occur now] are not prompt.”

Schools must also address Title IX complaints even if the offense occurred off campus and the survivor is no longer a student at the school, O’Hara said. “One act is enough to create a hostile environment,” they said.

In addition, schools are no longer required to hold live hearings and cross-examinations with the person who has filed a complaint and the accused. “Together, these make it easier for survivors to report, seek support, and get the outcome they want from their school,” O’Hara said.

Sasha Buchert, senior attorney and nonbinary and transgender rights project director at Lambda Legal, the country’s oldest legal organization defending the rights of LGBTQIA+ people, said having the Department of Education making “crystal clear” what sex discrimination entails makes a powerful statement.

“There is so much case law already. But having the country’s education department clarifying this and enforcing it will go a long way toward rolling back some of the discrimination, harassment, and bullying that LGBTQ+ people face,” Buchert said.

“Being told by your school attorney, the media, and everyone you know that LGBTQ+ students are now protected will roll back some of this awful discrimination in schools that has done nothing but increase in the past few years,” Buchert said.

And having this rule in place will help protect students in schools regardless of the schools’ size or funding levels. “I see institutions that have all the rules and resources to do the right thing and choose not to, and institutions with far fewer resources and far less favoring their ability to do the right thing, who have put a lot of time, effort, and energy into doing the right thing,” O’Hara said. “Having more protective rules and regs is step one.”