The Biden administration proposed sweeping changes to federal rules under the gender equity law Title IX that would revoke Trump administration mandates surrounding sexual misconduct that advocates for assault survivors said discriminated against victims.
The new regulation would also enshrine that Title IX’s prohibition on discrimination based on sex extends to sexual orientation and gender identity, giving landmark protections to transgender students. The current Title IX regulation did not address the rights of transgender students.
The proposed rules are likely kick off a heated battle over the obligations of schools to address sexual misconduct, the balance between the rights of victims and accused students and over rights of transgender students.
“Our proposed changes would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone, and make clear those protections include discrimination based on sexual orientation and gender identity,” Secretary of Education Miguel Cardona told reporters Thursday.
The proposed rules would keep some Trump-era mandates, such as ordering schools to presume an accused student innocent until the conclusion of a grievance procedure and continue to permit informal resolutions of sexual misconduct complaints if both accuser and the accused agree.
They would also allow schools to use a clear and convincing evidence standard of proof — which generally means about 75 percent certain — to determine if an accused student violated sexual misconduct rules, but only if it’s also used by the school in other discrimination cases, like those involving racial harassment. Otherwise, schools must use the preponderance of the evidence standard, or about 51 percent certain, the same threshold used in most civil lawsuits.
The proposal departs from the current regulation in a number of ways, however, including that live hearings would no longer be required in college sexual misconduct cases, cross-examination would not be required in hearings and schools would be allowed to investigate and punish assaults that take place off-campus. The proposed rules would also allow the investigator to decide the outcome of the case, but require that all Title IX coordinators, investigators and decision-makers not have a conflict of interest or bias for or against complainants or respondents.
The Biden administration’s proposal would also allow schools to investigate and sanction sexual misconduct without a formal complaint.
For the next 60 days, the public will be able to submit comments on the proposed Title IX regulation. The department will then need to address each point in writing before the regulation can be finalized. The process is likely to take several months, if not longer, to finalize.
But if Republicans retake majorities in the House and Senate, lawmakers could use the Congressional Review Act to vote within 60 legislative days to overturn major regulations issued by federal agencies.
Title IX, an element of the Education Amendments of 1972, prohibits discrimination based on sex in any school that takes federal funding — which is nearly all of them — and federal courts have held that the law requires schools to address sexual misconduct allegations.
The Obama administration ramped up enforcement of Title IX in response to an increase in activism from college sexual assault survivors who said schools were giving slap-on-the-wrist punishments to assailants and failing to support victims.
However, conservative organizations, civil liberties groups and some law professors objected to the policies prescribed by the Obama administration, complaining that they failed to safeguard due process in campus investigations.
The Trump administration subsequently spent much of its tenure building a Title IX regulation, implemented in 2020, that prescribed steps schools must take in responding to sexual assault allegations and tightening the definition of sexual harassment.
The regulation said schools were not allowed to open a Title IX case if an alleged assault happened off-campus, required colleges to hold hearings to determine the guilt of an accused student and limited what could be considered in tribunals, among many other provisions. The rules were overwhelmingly opposed by sexual assault survivor advocacy groups, civil rights organizations and trade groups for K-12 schools and colleges.
During the 2020 presidential campaign, Biden vowed to overturn the regulation.
The Biden administration has said it is using the 2020 Supreme Court decision in Bostock v. Clayton County, which held that employees cannot be discriminated against in a workplace because they are gay or transgender, to guide its approach to LGBTQ rights in education settings.
Cementing discrimination against transgender students as a violation of Title IX has drawn in a host of new activist groups, many of whom sprouted up over the past two years amid a wave of battles within K12 schools over how race and gender.
In April, 27 conservative activist groups sent a letter to Cardona expressing concern that the department’s plans for new Title IX regulations would erode due process protections for accused students and that extending protections for gender identity “would rob girls and women of equal athletic opportunities.”
The proposed regulation would not address who is allowed to join male or female athletic teams. A senior department official said it expects to propose separate rules regarding athletics, but could not say when that will occur.
“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” Cardona said.
Over 200 civil rights groups sent their own letter to the department earlier this month urging it to make good on the administration’s promise to issue new Title IX rules, arguing that sexual assault survivors, LGBTQ and pregnant students are in dire need of protection and that the current regulation has deterred students from reporting abuse allegations.
“There are students who won’t go through the process, who are too afraid to go through the process, who don’t trust the process,” said Adele Kimmel, a victims’ rights attorney for the nonprofit Public Justice, one of the groups to sign the letter.
The existing regulation imposed by the Trump administration has been a “nightmare” for schools to adhere to as well, said Jackie Wernz, an Illinois-based attorney who advises schools on civil rights laws and federal mandates. The requirements for misconduct investigations are overly prescriptive, she said, and often come into conflict with state laws and union agreements.
“It puts schools in a Catch-22, in that they have to figure out which law they want to violate,” Wernz said.
The Trump administration also scrapped a requirement that Title IX cases be resolved within 60 days, mandating instead that they be completed in a reasonable amount of time. The new proposal would keep the same language.
Elizabeth Abinour, a Michigan-based attorney who represents students in Title IX cases, said she’s had many instances in which schools took more than a year to resolve an investigation.
“There’s no way to challenge that when the rule just says the timeline has to be reasonable,” Abinour said.