The Biden administration’s proposed rules to codify Title IX’s coverage of the LGBTQIA+ community and better protect all students has met with delay after delay. Meanwhile, some students continue to suffer discrimination and harassment.
By Sandra Guy, SWE Contributor
Even if President Joe Biden’s 2022 proposed regulations enhancing coverage of Title IX finally take effect in March 2024, after three delays, experts say opponents are certain to contest them in court.
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. The Biden administration’s proposed Title IX rules include a huge change in the very definition of sexual discrimination and sexual harassment — and would change how seriously a sexual assault, discrimination, or harassment claim will be taken.
The key new language in the Biden Title IX rules 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 an overview of the law published by the U. S. Department of Education.
The definition hews to a June 15, 2020, U.S. Supreme Court ruling, known as the Bostock ruling, stating that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex.
But the rules have met with multiple delays since first being proposed in June 2022. The Department of Education, which has jurisdiction over the rules, says the delays have occurred because it has received hundreds of thousands of public comments that it must scrutinize before transmitting the rules to the Office of Management and Budget for evaluation of their impact on the federal budget.
At press time, the final version of the rules was set to be announced in March, but it was unclear if enough time remained to meet that deadline. Even if the rules are announced and go into effect, sources say there will likely be challenges from lawyers, activists, and as many as 18 Republican state attorneys general. “We are definitely anticipating litigation challenging the Biden administration’s Title IX [regulations],” said Elizabeth X. Tang, senior counsel for education and workplace justice at the National Women’s Law Center in Washington, D.C.
“We are watching the clock to see if the biden administration sticks to this march deadline. if it appears they are not going to make the deadline, we’ll have to escalate our advocacy to make sure they fully understand how urgent this priority is to 70 million students nationwide; how critical it is for this administration to take this seriously.”
— Elizabeth X. Tang, National Women’s Law Center
Many of the opponents of Biden’s Title IX agenda have worked behind the scenes for decades to dismantle civil, racial, and gender rights, including affirmative action; LGBTQIA+ recognition; and diversity, equity, and inclusion programs. (LGBTQI refers to lesbian, gay, bisexual, transgender, queer or questioning, and intersex. The acronym often is referred to as LGBTQIA+ to add asexual and those who identify with a sexual orientation or gender identity that isn’t included in the acronym.)
Once the rules go into effect, opponents would be required to challenge them first in a federal district court, and then in a federal circuit court, before reaching the U.S. Supreme Court, which they hope would be receptive to their arguments.
They may be right: In a 6–3 ruling known as the Dobbs decision on June 24, 2022, the U.S. Supreme court overturned Roe v. Wade, eliminating the right to abortion after almost 50 years, and in a 6–3 ruling on June 29, 2023, it ended affirmative action at public and private colleges and universities across the country.
It is also possible that Republicans could gain control of both the U.S. House of Representatives and the Senate, as well as the White House in the November election. If that happens, the federal government could simply rescind Biden’s Title IX rules altogether, said Brett A. Sokolow, chair of the Association of Title IX Administrators. Or they could order a different Title IX overhaul. “A Republican president would immediately announce they are redoing Title IX rules,” Sokolow said. “It’s a possibility this could pendulum-swing every four years.” The only way to prevent such swings, he said, would be for Congress to rewrite Title IX to limit the authority of federal agencies over its implementation. At that point, any changes would require an act of Congress.
Protecting trans athletes
In April 2023, while waiting for its initial set of rules to be announced, the Biden administration upped the ante: It proposed further updating Title IX to prohibit blanket laws that bar transgender students from participating in the sports teams consistent with their gender identity. Education Department officials said they plan to issue the earlier Title IX rules and the rule about athletes at the same time.
The proposed rule governing transgender athletes would preempt state laws that “categorically” prohibit transgender students from participating in a sport consistent with their gender identity, Sokolaw said. Colleges and universities would risk their federal funding if they followed state laws that ban participation in athletics by transgender students.
“Opponents can and will sue to block some or all of the new regulations, including the athletics piece,” Sokolow said.
Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in an April 6, 2023, statement that actions to protect transgender students are badly needed. “NWLC has been fighting for over 50 years to see Title IX fulfill its promise to ensure all students are given equal opportunities and protected from sex discrimination,” Graves said. “Extremist politicians continue to manufacture panic over trans girls’ inclusion in school and school athletics instead of addressing the real changes and protections girls need in sports, including equal time and resources in school sports or addressing the rampant sexual abuse of student athletes. LGBTQI students deserve to learn and thrive — not be targets for state-sponsored bullying and violence.”
Other supporters of Biden’s Title IX rules have said the regulations are expected to dramatically empower those who experience discrimination. Maha Ibrahim, J.D., a Title IX expert attorney who leads education equity efforts at Equal Rights Advocates, a San Francisco-based nonprofit focused on equity in schools and workplaces, said Biden’s proposed changes will create a “new federal baseline” recognizing LGBTQIA+’s students’ sex and gender identities as protected.
Sidestepping accountability
Meanwhile, in late July 2023, the Education Department granted Baylor University, a Baptist institution, a religious exemption to Title IX. The department has said it plans to review each Title IX challenge on its own merits.
Lori Fogleman, Baylor’s assistant vice president of media and public relations, issued a statement to the Texas Tribune, which it published in an Aug. 12, 2023, article, saying that media reports have been misleading about the nature of the exemptions. The university has not received a broad exemption from sexual harassment regulations, she said.
“Instead, Baylor is responding to current considerations by the U.S. Department of Education to move to an expanded definition of sexual harassment, which could infringe on Baylor’s rights under the U.S. Constitution, as well as Title IX, to conduct its affairs in a manner consistent with its religious beliefs,” the statement reads. “Baylor has taken and will continue to take meaningful steps to ensure members of the LGBTQ community are loved, cared for, and protected as a part of the Baylor family. Further, the university remains committed to promoting and maintaining an educational environment in which students can learn and grow in accordance with our Christian mission and our call to love our neighbors as ourselves.”
Worth the waits?
The Biden administration first proposed its Title IX regulations on June 23, 2022. The regulations would replace former President Donald Trump’s Title IX rules, which took effect in May 2020. The Trump administration rescinded guidelines that the Obama administration had issued in 2011. Trump’s Title IX rule narrowed the definition of what constitutes sexual harassment and sexual misconduct and now requires live hearings so that reporting students must face their alleged abusers and undergo cross-examination.
The Biden administration’s proposal called for keeping Title IX provisions that presume innocence, require fair and unbiased investigations, and ensure equitable rights of the accused and accusers, according to a White House fact sheet. It would do away with the live face-to-face hearings and cross-examinations.
In January 2023, the Education Department announced it would release a final, consolidated Title IX rule in May 2023. In April 2023, as part of Sexual Assault Awareness Month, more than 100 gender justice and survivor advocacy organizations and more than 8,000 people wrote letters urging the administration to stay with its promised timeline.
Instead, the Education Department announced that the release of the final rule would be delayed until October 2023, citing more than 240,000 public comments it had received. In response, 75 advocacy organizations reiterated in a letter that any further delay would continue to inflict a terrible cost on student survivors, LGBTQIA+ students, and pregnant and parenting students.
LGBTQIA+ students who have faced sexual assault or anti-LGBTQIA+ harassment may decide not to file a Title IX complaint because of state laws that criminalize gender-affirming care or that require school employees to expose LGBTQIA+ students to their families.
Students gathered by the Human Rights Campaign, the advocacy group Know Your IX, the National Women’s Law Center, and other organizations rallied in front of the White House on Dec. 5, 2023, to urge the administration to speed up the new regulations’ enactment. More than 120 civil rights advocates sent a letter on Oct. 23, 2023, to Biden and Education Department officials that stated, in part, that “attacks on survivors, LGBTQIA+ people, and pregnant people grow ever more vicious. Students across the United States are — more than ever — looking to this administration to protect and strengthen their Title IX rights: to ensure that being a victim of sex-based harassment does not entirely derail their education; to ensure that dozens of hostile, anti-LGBTQIA+ education laws enacted on the state level (with hundreds more proposed each year) do not crush the right of queer and transgender youth to learn safely; and to ensure that repressive state laws and policies, particularly in the wake of the Supreme Court’s destructive Dobbs decision, do not force pregnant and parenting students out of schools altogether.”
Some experts worry that pregnant students who have faced sexual assault or pregnancy harassment and who intend to get an abortion or fear they may have a miscarriage may decide not to file a Title IX complaint because of state laws that criminalize abortion. Similarly, LGBTQIA+ students who have faced sexual assault or anti-LGBTQIA+ harassment may decide not to file a Title IX complaint because of state laws that criminalize gender-affirming care or that require school employees to expose LGBTQIA+ students to their families.
Additionally, many students who are undocumented do not want to file a complaint because they do not want to attract attention, Sokolow said. “Title IX underserves female coaches, Native Americans, immigrants,” he said, noting that Title IX procedures tend to be long, drawn-out affairs that can go on for years.
On Nov. 30, 2023, U.S. House Democrats wrote a letter to Education Secretary Miguel Cardona seeking an updated timeline and urging the department to “use all necessary resources” to issue the final regulations as soon as possible.
“For years, students across the country have lived under former President Donald Trump’s Title IX policies that weakened protections for sexual assault and harassment survivors and sowed confusion about the extent of students’ protections against sex discrimination, including discrimination on the basis of sexual orientation, gender identity, and sex characteristics,” the letter said.
The Biden Title IX rules would 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’s] education program or activity,” as explained in the White House fact sheet.
Students would no longer have to show that the behavior is “so severe, pervasive, and objectively offensive” that it denies access to education, as the current Title IX regulations require.
The SAFER Act
While advocacy groups and other supporters of the Biden rule wait out the delays, they have taken other actions. The National Women’s Law Center, for example, is working to reintroduce the Students’ Access to Freedom and Educational Rights Act, or SAFER Act, with even stronger anti-harassment and anti-discrimination provisions. No date has been set for the updated SAFER Act’s reintroduction because work is still underway to strengthen the draft bill and to identify additional House and Senate co-sponsors to shore up the legislation’s support, Tang said. (At press time, the bill was sponsored by Sens. Robert P. Casey Jr., D-Pa., and Mazie K. Hirono, D-Hawaii, as well as by Reps. Jahana Hayes, D-Conn., and Deborah Dingell, D-Mich. Co-sponsors are Sens. Cory Booker, D-N.J., Sheldon Whitehouse, D-R.I., and Tammy Baldwin, D-Wisc.)
The SAFER Act, first introduced on Dec. 2, 2022, would bring Title IX more in line with Title VII, which prohibits sex, race, disability, and other discrimination in the workplace. 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. The SAFER Act would amend Title IX and other statutes prohibiting sex-based discrimination to remove “unreasonably burdensome” standards for private harassment lawsuits seeking damages.
If the SAFER Act were to pass Congress and be signed by President Biden, the federal law would override any narrower state laws that govern sex, race, and disability harassment, including harassment based on LGBTQIA+ status or pregnancy. The federal law would not, however, have any power over state laws that govern non-harassing forms of discrimination, such as those that exclude transgender people from sports or deny them gender-affirming care, Tang said.
Offering leeway
Meanwhile, Sokolow said the Biden administration’s Title IX rules would give colleges and universities more leeway in certain decisions than do the current Trump-era rules. If school officials make choices that fail to sufficiently honor due process, they could open themselves up to liability, he said. “Schools must figure out the right balance of protections, which will vary from school to school,” he said.
One example is the Biden administration’s proposal for the use of a summary as evidence rather than a report. A report would offer a comprehensive and detailed compilation of all evidence, while a summary would offer only the highlights. “Schools will have to ask, ‘Do we have one approach for a report versus a summary, or does it depend on what kind of complaint it is?’” Sokolow said. Another question, Sokolow said: “Should schools allow investigators to also serve as adjudicators?”
For students’ sex-based harassment complaints, Biden’s Title IX rule would require colleges and universities to, among other things:
- Provide written notice of dismissal, delays, meetings, interviews, and hearings to the parties of the allegations,
- 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 for assessing 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.
“We are watching the clock to see if the Biden administration sticks to this March deadline,” Tang said. “If it appears they’re not going to make the deadline, we’ll have to escalate our advocacy to make sure they fully understand how urgent this priority is to 70 million students nationwide; how critical it is for this administration to take this seriously.”