Biden Administration Announces Title IX Rule Changes

After multiple delays, the Biden administration released final regulations overhauling Title IX, giving colleges and universities until Aug. 1, 2024, to comply.

Title IX is a civil rights law prohibiting educational institutions receiving federal aid from engaging in sex-based discrimination. The new regulations will replace Trump-era rules from 2020 that addressed sexual misconduct and established new requirements for how colleges and universities handle Title IX complaints.

“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation’s schools free from sex discrimination,” U.S. Secretary of Education Miguel Cardona said in a statement. “These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.”

Biden’s proposed regulations — announced in June 2022 on the 50th anniversary of the landmark legislation — were expected by the end of May 2023 but were pushed back to October, and then again to March 2024.

The final regulations expand the definition of sex-based discrimination to include pregnancy or related conditions, sexual orientation, and gender identity. Additionally, the new regulations forbid discrimination and harassment based on sexual orientation, gender identity, and sex characteristics in federally funded education programs.

The Biden administration’s changes also provide a wider definition of sexual harassment, including unwelcome sex-based conduct that is “severe or pervasive.” Previously, the 2020 regulations offered a more narrow definition of harassment, only addressing conduct that was “severe, pervasive, and objectively offensive.”

Additionally, colleges and universities will be responsible for investigating all Title IX complaints, regardless of whether they occurred on or off campus, or even outside the United States.

Under the 2020 rules, institutions didn’t have to address cases that occurred outside university education programs or the country, such as in a study abroad program.

The new changes also require schools to provide “supportive measures” to students who report sex discrimination, including sexual violence and assault, to help “restore or preserve” the student’s access to education.

“These final regulations clarify Title IX’s requirement that schools promptly and effectively address all forms of sex discrimination,” Assistant Secretary for Civil Rights Catherine E. Lhamon said in a statement. “We look forward to working with schools, students, and families to prevent and eliminate sex discrimination.”

The Trump administration’s rules also required live hearings and cross-examinations in sex-based harassment complaints at colleges and universities.

Under the new regulations, live hearings are optional and have additional restrictions, including allowing those involved to participate remotely in separate locations and prohibiting questions that are “unclear or harassing.”

But the Foundation for Individual Rights and Expression (FIRE) released a statement saying that the new regulations violate student’s free speech and due process rights.

FIRE also takes issue with the return to the “single-investigator model,” which allows the decision-maker in cases to be the same person as the Title IX coordinator or investigator.

“Justice is only possible when hearings are fair for everyone. So today’s regulations mean one thing: America’s college students are less likely to receive justice if they find themselves in a Title IX proceeding,” FIRE Legal Director Will Creeley said in a statement.

“Rather than playing political ping-pong with student rights, the Department of Education should recognize that removing procedural protections for students is the exact opposite of fairness.”

Republican U.S. Rep. Virginia Foxx of North Carolina, chair of the House Committee on Education and the Workforce, said in a statement that the final rule places Title IX “on the chopping block” and sets back “decades of advancement and protections for women and girls.”

“This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender,” she said. “The rule also undermines existing due process rights, placing students and institutions in legal jeopardy and again undermining the protections Title IX is intended to provide.”

However, advocates for survivors of sexual violence and LGBTQ+ students, such as Know Your IX, a survivor and youth-led program from Advocates for Youth, welcome the overhauled regulations.

“After years of pressure from students and survivors of sexual violence, the Biden administration’s Title IX update will make schools safer and more accessible for young people, many of whom experienced irreparable harm while they fought for protection and support,” Emma Grasso Levine, senior manager of Title IX policy and programs at Know Your IX, said in a statement.

“This new guidance takes a crucial step toward ensuring every young person has access to an education free from gender violence and discrimination. … Student survivors of sexual violence, LGBTQ+ students, and pregnant and parenting students cannot afford to suffer any longer under policies that jeopardize their right to an education.”