Updated Title IX Rules to Bring Clarity to Sex Discrimination Claims

Fifty-one years after Title IX took effect, women’s rights advocates say the civil rights law still has a long way to go to thwart sex discrimination in science, technology, engineering, and mathematics fields. Title IX is the federal law that bans sex-based discrimination and sexual assault and harassment in federally funded K-12 schools and universities.

“Sex discrimination — including regarding promotion, compensation, and access to research resources, and in the form of gender bias and sexual harassment — continues to hinder girls’ and women’s participation in STEM and CTE (career and technical education),” affirms the National Coalition for Women and Girls in Education in its report “Title IX at 50.”

Yet even skeptics concede they hope that President Biden’s anticipated Title IX regulations will dramatically empower people who have been historically neglected.

That is because the Biden administration’s proposed Title IX rule includes a major change in the very definition of sexual discrimination and sexual harassment — and how seriously a sexual assault, discrimination, or harassment claim will be addressed.

The key new language in the Biden Title IX rule seeks to clarify existing definitions of sex discrimination. The rule would bar “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity,” according to a White House statement on the issue.

The Biden administration’s clarification — for the first time — declares that “sex discrimination” under Title IX includes discrimination based on sexual orientation, gender identity, sex-related characteristics (including intersex traits), status as transgender or nonbinary, or sex stereotypes. The definition hews to a historic June 15, 2020, U.S. Supreme Court ruling stating that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex.

This decision resulted from three cases: Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, in which gay men were fired because of their sexual orientation, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment and Opportunity Commission, where a transgender woman was fired because of her gender identity. The Supreme Court combined these cases and issued a single opinion — Bostock v. Clayton County—in which it held that “an employer who fires an individual merely for being gay or transgender violates Title VII.” The federal Title VII prohibits employment discrimination based on race, color, religion, sex, and natural origin.

Maha Ibrahim, J.D., a Title IX public policy expert and attorney, leads education equity efforts for Equal Rights Advocates. The San Francisco-based gender justice nonprofit focuses on equity in schools and workplaces. Biden’s proposed changes, she says, “mean that the law [will] explicitly recognize LGBTQI’s students’ sex and gender identities as protected” — and will create a new federal baseline so the protections apply across the board.

“It’s one of the greatest civil rights advancements for gender of the last 50 years,” said Ibrahim, who also serves as senior attorney for litigation and policy and managing attorney of the Ending Sexual Violence in Education Program.

Another major Biden administration change 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 approved, define harassment as needing to be sufficiently severe, pervasive, and objectively offensive to meet the definition of Title IX sexual harassment.

The Biden Title IX rules as explained in a White House fact sheet define prohibited “hostile environment harassment” as “unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from [a school or university] education program or activity.” What is different is that students will no longer have to show that the behavior is “so severe, pervasive, and objectively offensive” that it denies access to education.

“The Biden administration’s change takes into account the student’s subjective accounting,” said Emily Suski, J.D., associate professor of law and associate dean of clinics and externships at the University of South Carolina School of Law in Columbia, South Carolina. After all, she said, “How do you determine [that harassment is] sufficiently severe and pervasive?”

Suski began focusing her research on Title IX and civil rights in the public schools after her work on anti-bullying laws in the early 2010s led her to realize that student bullying is one place on a continuum of other harassing behaviors.

“Bullying and sexual harassment are used interchangeably, especially among adolescents,” Suski said. “Sexual harassment and bullying are used for power and control purposes. The part that is unique to adolescents is that they use bullying and sexual harassment interchangeably to that end.”

Ruling expected to be finalized within months

No specific date is yet known when the new Title IX regulations will go into effect. “The rulemaking process is still ongoing,” a U.S. Department of Education spokesperson said on Jan. 30 of this year.

Part of the reason is that the Education Department still must respond to more than 200,000 public comments on the Biden administration’s proposed Title IX regulations, make changes as it deems necessary in response, and explain why certain changes were made or not made.

Biden led the Obama administration’s effort to prevent sexual assault on college and university campuses. In a statement released on the day new Title IX details were announced, Biden said, “The United States has made monumental progress in advancing equity and equality for all students.

“As we look to the next 50 years,” Biden said, “I am committed to protecting this progress and working to achieve full equality, inclusion, and dignity for women and girls, LGBTQI+ Americans, all students, and all Americans.”

The Title IX rules address athletics indirectly since the Education Department plans to issue a separate proposal to address equal opportunities to play school sports. However, the new Title IX does prohibit schools from excluding students from school sports and other activities because they are transgender or intersex. Specifically, “They [the proposed regulations] would make clear that preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX, except in some limited areas set out in the statute or regulation,” the White House fact sheet indicated.

At the same time, the Biden administration’s rules, released for public comment on June 23, 2022, would keep Title IX provisions that presume innocence, require fair and unbiased investigations, and ensure equitable rights of the accused and accusers, according to the White House fact sheet.

Title IX proposal requires prompt, effective action on sex discrimination claims

Proposed Title IX rules would also require schools “to act promptly and effectively in response to information and complaints about sex discrimination in their education programs or activities,” according to the White House fact sheet.

That’s a much stronger standard than Title IX under the Trump administration and even more so than a previous U.S. Supreme Court ruling on the issue, Suski said, citing Davis v. Monroe County Board of Education. Under the latter, schools’ response to sex discrimination and harassment complaints needs to be “not deliberately indifferent.”

Clearer guidance for pregnant students

Title IX already requires schools to provide services and accommodations that are offered to students who are temporarily disabled to pregnant students and those with pregnancy-related medical conditions.

The Biden rules go further. Schools may not “adopt or apply any policy, practice, or procedure” based on a student’s or applicant’s “current, potential, or past” pregnancy or pregnancy-related conditions if it treats them differently on the basis of sex.

When the new Title IX takes effect, schools will be required to make modifications for pregnant students such as breaks during class to attend to health needs, to express breast milk or to breastfeed; changes in physical space or supplies such as a footrest or a larger desk; changes in schedule or course sequence; and access to online or other homebound education.

The rule also specifies that a clean, private lactation space that is not a bathroom be accessible so students and employees can breastfeed or express breast milk.

The Title IX coordinator will have to implement, coordinate, and document these changes.

The U.S. Department of Education’s Office for Civil Rights is already investigating claims of discrimination based on pregnancy or pregnancy-related conditions under Title IX. On Jan. 26, the office announced it had resolved an investigation into a student’s requests for pregnancy-related adjustments in academic year 2020-21 at Troy University, 50 miles southeast of Montgomery, Alabama.

The Education Department stated that the student said that after she was unable to fit into a classroom desk because of her pregnancy, she requested a table for one of her classes but never received one. She also said she was penalized for poor attendance in a class and received a failing grade in another class because she was denied the ability to make up work.

The Office for Civil Rights investigation identified concerns that the Title IX coordinator failed to consistently or timely intervene when the student alerted the coordinator about her situation. And the absence of information about how to obtain pregnancy-related adjustments contributed to the university’s uncoordinated response, the Education Department stated. The student had to make repeated requests through both the university’s Title IX coordinator and individual professors.

As a result of the investigation, the university committed to, among other things:

• Review, revise, or draft policies and procedures on how to address similar requests to ensure Title IX compliance.
• Update the website to inform pregnant students of Title IX rights, the process for requesting adjustments, and a link to the grievance procedures that apply to complaints of pregnancy-related or other sex discrimination.
• Train faculty and staff about Title IX rights and the university’s obligations to pregnant students.

The Biden administration’s proposed rules would also prohibit treating parents differently because of their sex or “parental status,” such as being an adoptive or stepparent or a legal guardian.

Procedural changes keep victims top-of-mind

For students’ sex-based harassment complaints, the new rules would require colleges and universities to, among other things:

• Provide written notice to the parties of the allegations, dismissal, delays, meetings, interviews, and hearings.
• Offer the opportunity to have an advisor of the party’s choice at any meeting or proceeding.
• Provide equitable access to relevant evidence or to a written report summarizing the evidence.
• Set up a process to assess the credibility of parties and witnesses, when necessary.
• Permit, but not require, a live hearing. When a live hearing is permitted, the parties could ask to participate from separate locations using technology.

Title IX regulations under the Trump administration require sexual assault or abuse survivors on college campuses — overwhelmingly women — and the students they’ve accused of abusing them — primarily men — to go through a live, face-to-face hearing. Current regulations also:

• Prohibit questions that are unclear or harassing of the party being questioned.
• Provide an appeal based on procedural irregularity, new evidence, and conflict of interest or bias.

The current regulations issued by the Trump administration do not define “retaliation” or “peer retaliation.” The proposed regulations, however, would clarify that Title IX protects a person from retaliation, including peer retaliation. Retaliation would be defined as threats, coercion, intimidation, or discrimination against anyone because the person has reported possible sex discrimination, made a sex-discrimination complaint, or participated in any way in a Title IX process. Peer retaliation would also be prohibited. It is defined as retaliation by one student against another student.

Equal access to scholarships, affirmative action remains unchanged

Scholarship and affirmative action regulations that have been in place since 1980, when the first Title IX regulations were issued, remain basically the same. Neither the Trump administration nor the Biden administration made or proposed substantive changes, said Elizabeth Tang, J.D., senior counsel, education and workplace justice, for the National Women’s Law Center in Washington, D.C.

The Biden administration also has not proposed changes to any of the other provisions that generally restrict schools from excluding or segregating students by sex in curricular or extracurricular programs.

Tang said federal courts have recognized that Title IX requires schools to ensure transgender students have access to opportunities and programs that match their gender identity. This means:

• Transgender women should have access to scholarships, programs, and other opportunities that are available to cisgender women.
• Transgender men should have access to scholarships, programs, and other opportunities that are available to cisgender men.

Tang also noted that federal courts have recognized that Title IX prohibits discrimination based on gender nonconformity and sex stereotyping.

This means:

• Title IX prohibits discrimination against nonbinary students.
• Schools should make clear that women-only programs are open to nonbinary students.
• If nonbinary or transgender students express that the available gender-conscious or gender-specific options do not suit their needs, schools should consider creating or increasing programming and spaces specifically centered on the needs of transgender or nonbinary students.

Gender-conscious and gender-specific programs can be lawful affirmative action programs under Title IX, Tang wrote. If a school’s women-only program is designed to overcome the effects of historical conditions that resulted in limited participation by women, it does not need to provide an equal opportunity to men, she wrote. For example, if a school enrolls and retains fewer women than men in STEM or other degree programs, that data can be used to show the need for a women-only engineering club.

If a school has gender disparities in student or academic leadership or is preparing students for work in male-dominated sectors, that data can be used to show the need for a women-only mentorship community. If women are more likely to experience harassment and assault than men, that data can be used to show the need for programming on sexual harassment and assault that is targeted to women, Tang said.

A gender-conscious program does not have to end because women are currently participating equally. If the program were to end and the historical gender disparity would return, then the program should be continued, Tang said.

Additionally, if a school offers a gender-neutral or coed option in which men can participate, that often is sufficient to show that the school offers equal opportunities for men.

Tang offered this example: A college may have a women’s center that is focused on women but allows anyone to participate. The school doesn’t need to change the name of the center or program, even if it has “women” or “girls” in the title, as long as it makes the open-participation policy clear in all promotional materials.

Erin E. Buzuvis, J.D., professor of law and associate dean for academic affairs at Western New England University, cited another illustration. A private group can certainly award scholarships to women in STEM, but if the college is helping them advertise for applicants, for example, that would be a violation, Buzuvis said.

“We recognize there are sex-specific programs that are not sex discrimination,” she said. “[That] there are separate sex-specific programs and opportunities in and of itself does not mean sex discrimination,” Buzuvis said. “It’s OK to have sex-segregated programs — athletics and dorms. Within those, you need to protect people to access because of their gender identity.

“The current regulations would allow for sex-segregated dorms,” she said. “But to not allow a trans woman into that dorm would be sex discrimination.”

As for men challenging Title IX as discriminatory, Equal Rights Access attorney Ibrahim said, “Nothing in the Biden regulations has been written to hinder equal access to education. But there is a really energetic and dedicated opposition to civil rights in this country,” she said.

“There are people who dedicate their whole lives to dismantling civil rights. They are obsessed with finding ways to interpret all sorts of laws, including Title IX, to meet their anti-equality agenda. They will try to force a legal analysis of any civil rights law that perverts its original purpose.”

Title IX re-do ends years of back-and-forth guidance

The latest Biden administration Title IX regulations reflect some progressive policies initiated under former President Barack Obama. For example, in May 2016, the U.S. Justice and Education departments published guidance telling Title IX institutions that they must use students’ pronouns that match their gender identity, even if other documents indicate a different sex. The guidance also directed schools to allow transgender students to use locker rooms and other facilities that aligned with their gender identity.

That changed in February 2017, when the U.S. Senate confirmed Betsy DeVos as education secretary under then-President Donald Trump. Under DeVos, the Education Department rescinded the Title IX transgender student protections and issued new regulations.

After Joe Biden defeated Trump in the 2020 election, Biden issued an executive order when he took office in January 2021 citing Title IX and declaring that everyone should receive equal treatment under federal law regardless of sexual orientation or gender identity. He quickly followed that by rewriting Title IX regulations to reverse many of the rules implemented by DeVos.

Senators Propose a Bill to Strengthen Title IX Even More

Proponents are looking at even more hopeful outcomes. A bill sponsored by U.S. Sens. Bob Casey Jr., D-Pa., and Mazie Hirono, D-Hawaii, aims to strengthen Title IX protections for student survivors of sexual assault or harassment.

The Students’ Access to Freedom and Educational Rights (SAFER) Act, introduced Dec. 2, 2022, would bring Title IX, which prohibits educational institutions receiving federal funding from discriminating based on sex, more in line with Title VII, which prevents sex discrimination in the workplace, according to the Capitol Hill news publication, The Hill.

Under Title VII, a plaintiff experiencing harassment by a co-worker or other non-supervisor must only show that their employer knew about the harassment and responded negligently. Casey and Hirono’s SAFER Act would amend Title IX and other statutes prohibiting sex-based discrimination to remove “unreasonably burdensome” standards for private harassment lawsuits seeking damages.

“So many students who endure sexual harassment or assault experience isolation, fear, and difficulty focusing on their education as they process a traumatic ordeal,” Casey presented in a joint statement with Hirono. “To add insult to injury, students who report their experiences face an uphill battle to seek justice.”

“We cannot go backwards,” he said. “School should be a safe place — from early education all the way to institutions of higher learning. The SAFER Act would protect the civil rights of students across the country and help them feel safe and supported as they pursue their education.”

“Despite the progress Title IX has created,” Hirono said, “too many students — especially LGBTQ+ students, pregnant and parenting students, students of color, and students with disabilities — are still deprived the full protections of the law. The SAFER Act will strengthen enforcement of Title IX at schools and create important protections for survivors of harassment and assault on campus,” she said.

“This legislation will move us closer to fulfilling our promise of ensuring every student can get the quality education they deserve.”

Editor’s Note: The U.S. Department of Education is now reviewing more than 200,000 comments that the public submitted in response to the Biden administration’s proposed Title IX rules released June 23, 2022. Experts say the Biden administration is expected to issue the final rules sometime this spring. Consequently, the final Title IX rules have not yet been published. For more information on Title IX and STEM please see: https://swe.org/research/2022/title-ix-and-stem/