Biden Administration Finalizes New Title IX Rules Protecting LGBTQ+ Students and Victims of Sexual Assault

The Biden administration has implemented new rules to protect LGBTQ+ students and victims of campus sexual assault. The rules, part of a revised Title IX regulation issued by the Education Department, aim to provide safeguards for these groups, fulfilling a campaign pledge by President Joe Biden. The new provisions undo rules created by former Education Secretary Betsy DeVos, which added protections for students accused of sexual misconduct.

Exclusion of Transgender Athletes

Notably absent from Biden’s policy is any mention of transgender athletes. Although the administration had initially planned to include a new policy forbidding schools from enacting bans on transgender athletes, this provision has been put on hold. The delay is seen as a political maneuver during an election year, with Republicans rallying around bans on transgender athletes in girls' sports.

Response from Education Secretary Miguel Cardona

Education Secretary Miguel Cardona emphasized that the new rule makes it "crystal clear that everyone can access schools that are safe, welcoming, and that respect their rights." He stated, “No one should face bullying or discrimination just because of who they are, who they love."

Impact on LGBTQ+ Students

The update clarifies that Title IX also forbids discrimination based on sexual orientation or gender identity, providing protection for LGBTQ+ students who face discrimination. This marks a significant departure from previous interpretations of the 1972 law. LGBTQ+ students who are failed by their schools can seek recourse from the federal government.

Republican Opposition

The new regulation has sparked opposition from many Republicans who argue that Congress never intended such protections under Title IX. Rep. Virginia Foxx, a Republican from North Carolina, expressed concerns that the new regulation threatens decades of advancement for women and girls.

Impact on Transgender Students

The rule also makes it clear that treating transgender students differently from their classmates is discrimination, potentially putting state bathroom restrictions for transgender students in jeopardy. Schools following such state laws could run afoul of Title IX.

Changes in Response to Feedback

The revision, which was proposed nearly two years ago, has undergone significant changes in response to feedback from the public. The Education Department received a record 240,000 responses during the comment period, leading to alterations to ensure that schools and colleges respond to complaints of sexual misconduct.

Wider Definition of Sexual Harassment

One of the major changes in the new rule is a wider definition of sexual harassment. Schools are now required to address any unwelcome sex-based conduct that limits a student's equal access to education. This marks a significant departure from the previous requirement that the conduct had to be “severe, pervasive, and objectively offensive."

Changes to Live Hearings

Colleges will no longer be required to hold live hearings to allow students to cross-examine one another through representatives, a provision from the DeVos rules. Under the new rules, live hearings are optional and carry new limits, with alternatives such as allowing college officials to interview students separately.

Advocates' Response

Victims' advocates have applauded the changes, as the new rules preserve certain protections for accused students while providing additional safeguards for victims. Emma Grasso Levine, a senior manager at the group Know Your IX, praised the update as a step towards making schools safer for young people.

The latest overhaul continues a back-and-forth political battle as presidential administrations repeatedly rewrite the rules around campus sexual misconduct. Betsy DeVos criticized the new rule, while some colleges have been pushing for a political middle ground to end the whiplash of constant changes.