The Biden administration is cementing its efforts to codify new protections for transgender students and overhaul much of a Trump-era policy that mandates how schools must respond to sexual misconduct.
Education Secretary Miguel Cardona is unveiling a final rule on Friday realigning the Education Department’s interpretation of Title IX to ban “all forms of sex discrimination,” including discrimination based on sex stereotypes, sex characteristics, sexual orientation, gender identity and pregnancy or related conditions.
The administration is touting the rule as the “most comprehensive coverage” students will receive in the nearly half-century of Title IX, the federal education law that bars sex-based discrimination.
“No one should have to give up their dreams of attending or finishing school because they’re pregnant,” Cardona told reporters on a call Thursday evening. “No one should face bullying or discrimination just because of who they are or who they love. Sadly, this happens all too often. These regulations promote accountability by requiring schools to take swift action responsive to sex discrimination.”
The changes drew praise from civil rights advocates and LGBTQ+ groups while prompting a strong rebuke from Republican lawmakers and conservative organizations concerned about due process rights for students accused of misconduct, and protecting sex-separated spaces and programs. Still, civil right groups remain frustrated that Cardona hasn’t delivered on a separate rule overseeing school sports participation for transgender students.
During the rulemaking process, the hotly contested proposed policy drew more than 240,000 comments and faced several delays to its release since its initial unveiling in 2022. Cardona’s final rule will be officially published later this month, Biden administration officials said, and take effect in August, before the 2024-25 school year.
It’s also almost certain to be hit with legal challenges.
“The rule is unlawful. We and a coalition of interested parties will challenge it in court, and it will ultimately be struck down,” said Jennifer Braceras, founder of the Independent Women’s Law Center and a former commissioner of the U.S. Commission on Civil Rights.
The administration’s announcement makes good on President Joe Biden’s 2020 campaign promise to unravel much of former Education Secretary Betsy DeVos’ Title IX rule, a defining policy of her time in office. The Biden administration’s rule is also the second major regulatory overhaul of the federal government’s interpretation of the law in two presidential administrations.
Responding to sexual misconduct
DeVos’ rule took effect in August 2020 and has been in effect for most of Biden’s presidency. It narrowed the definition of sexual harassment and directed schools to conduct live hearings with cross-examination for sexual misconduct probes. She has said her rule was designed to protect fairness in investigations for those who are accused of misconduct and force schools to issue prompt action.
Advocacy groups representing students who have experienced sexual misconduct have been urging the Biden administration to swiftly roll back DeVos’ rule.
With its rule, the Trump administration “unraveled critical protections for student survivors,” said Shiwali Patel, who is senior counsel for the National Women’s Law Center.
“For many students, a weakened Title IX harassment rule is all they’ve known through their college and high school experience,” Patel said.
Cardona’s final rule redefines sex-based harassment as “unwelcome sex-based conduct that creates a hostile environment by limiting or denying a person’s ability to participate in or benefit from a school’s education program or activity.” It also demands that schools take “prompt and effective action” to end any sex discrimination, and “treat complainants and respondents equitably.”
The DeVos rule only prohibits unwelcome sex-based misconduct if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
Organizations representing the rights of students accused of sexual misconduct have pressed the Biden administration to keep the safeguards the DeVos rule included to require that every student receive a fair investigation.
The Biden administration said its rule “maintain[s] several major provisions from the current regulations.” The process is less prescriptive than what was issued under DeVos, but it emphasizes that a school may not punish a student while an investigation is in progress nor presume they are guilty of misconduct until a determination is made at the end of a school’s grievance procedures.
“Now, it’s up to school administrators to act quickly to implement and enforce the updated guidance,” said Emma Grasso Levine, senior manager of Title IX policy and programs at the nonprofit Know Your IX. “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.”
Protecting students from discrimination
The Biden final rule would codify protections based on gender identity for the first time, safeguarding transgender and nonbinary students from discrimination. It also clarifies that schools must protect student-parents, pregnant students and employees from discrimination. This means schools must have “reasonable modifications” for students and employees, including space and time for lactation.
But much of the focus among advocacy groups on both sides of the rule is on transgender students.
“While we celebrate the significance of this moment, we are still urging a release of a final rule that explicitly clarifies what Title IX has always stood for and guarantees — that transgender, nonbinary and intersex athletes have a right to play sports alongside their peers,” Patel said.
On Capitol Hill, GOP lawmakers slammed the rule’s protections for gender identity. Sen. Bill Cassidy (R-La.), the top Republican on the Senate education panel, called it “an attempt by the Biden administration to pursue an ideological agenda on gender identity and inject federal bureaucrats into the parent-child relationship.”
And House Education Chair Virginia Foxx (R-N.C.) accused the Education Department of jeopardizing advancements for women.
“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. “Evidently, the acceptance of biological reality, and the faithful implementation of the law, are just pills too big for the Department to swallow — and it shows.”
The Education Department said the final regulation recognizes that preventing someone from participating in school — including in sex-separate activities — “consistent with their gender identity causes that person more than de minimis harm.” But it said this reasoning is limited and does not apply to sex-separate living facilities and sex-separate athletic teams.
Department officials did not give an updated timeline for its regulation on sports, and reiterated that the proposed rule for it was introduced nine months after the rule that is being finalized.
Amanda Smith is a dedicated U.S. correspondent with a passion for uncovering the stories that shape the nation. With a background in political science, she provides in-depth analysis and insightful commentary on domestic affairs, ensuring readers are well-informed about the latest developments across the United States.
