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The Biden administration on Thursday proposed major changes to Title IX that would make it easier for victims of sexual harassment to report possible harm and expands protections to students based on sexual orientation and gender identity, reversing many of the current regulations created by former president Trump.
The new rule expands the definition of sexual harassment that was narrowed by the Trump administration as well as throwing out requirements for in-person hearings and cross-examinations.
“This is very much a step forward—it has more robust provisions for both complainants and respondents and more specific responsibilities for institutions,” said S. Daniel Carter, president of Safety Advisors for Educational Campuses.
Title IX of the Education Amendments of 1972 protects students, faculty and staff from sex-based discrimination at education programs that receive federal funding. The administration’s 700-page proposal was released on the law’s 50th anniversary and will undergo a 60-day comment period before taking effect.
“When it comes to government regulations, the specific wording and details are everything,” said Terry Hartle, senior vice president of government relations and public affairs at the American Council on Education. “One thing we can say for certain is that, like when the current regulations were first proposed, this will attract tens of thousands of comments, pro and con.”
It is expected that the proposed rules will receive pushback from conservatives, who have long been concerned about the protections of accused students’ due process rights in Title IX cases. Critics of former education secretary Betsy DeVos’s iteration of the law say it went too far to protect the rights of respondents and had a chilling effect that deterred many from reporting due to the complex and lengthy hearing process.
Legal battles over issues relating to transgender students, including pronoun and bathroom use and sports participation, are also expected.
The department will be conducting a separate rule-making process focused on student athletics due to the ongoing legal battles over transgender students’ involvement in athletics.
Expanding the Definition of Sexual Harassment
The Biden administration proposed a new definition of sex-based harassment that now includes not only harassment based on sex, but also sexual orientation, gender identity, pregnancy and any situation that creates a “hostile environment.”
It also throws out the Trump-era definition that harassment must be “so severe, pervasive, and objectively offensive,” which many regarded as too high a standard, returning to the pre-2020 standard of “severe or pervasive.”
Tracey Vitchers, the executive director of It’s on Us, a sexual violence prevention organization, said that under the proposed rule, “one instance is enough for a student to report what has happened to them, whereas under the current regulations that are in place from the Trump administration, in many cases, a student would have to experience ongoing and escalating acts of sexual violence or harassment for the school to be required to take action.”
Additionally, the proposed regulations would require colleges to respond to instances of sexual harassment that occur off campus at educational programs or out of country, such as in study abroad programs. The 2020 regulations only covered instances of sexual harassment that occurred on campus. Most campus employees would also now be required to report any instances of harassment to Title IX officials.
Changes to Investigations and Hearings
One of the most criticized aspects of the Trump-era version of Title IX was the requirement of cross-examination and in-person hearings, which many critics said was complicated and traumatizing for victims.
Thursday's proposal eliminates the requirement for investigations to include cross-examination or live hearings. However, colleges can choose to use these practices within their own grievance procedures. It also clarifies that colleges can use a remote option to conduct hearings so that a student bringing claims of harassment does not have to be in the same room as the person they are accusing.
The proposal also gives complainants more flexibility in reporting instances of sexual harassment, including allowing them to file a complaint after they have left college due to an instance of sexual harassment and the ability to pursue an informal complaint process without filing an official report.
Sharyn Potter, a professor of women’s and gender studies at the University of New Hampshire, said that many victims of sexual harassment leave college because of the harm they have experienced and that this new provision will “empower” victims, “because when they leave, the door is not shut behind them.”
The proposal also requires that colleges complete investigations in “prompt time frames” and that Title IX coordinators are in regular communication with both the complainant and respondent about the status of the case. The prior regulations, many said, left both parties largely in the dark as to the status of their cases, which can sometimes take up to a year to resolve.
Critics of the proposed rules are concerned about how the rollbacks to hearing procedures, specifically the elimination of the cross-examination requirement and changes to standards of evidence, will impact an accused student’s right to due process. This is expected to be one of the proposal’s largest legal targets, especially from conservatives.
Senator Richard Burr, a Republican from North Carolina, said in a statement, “The existing rule struck a balance that follows the law and is fair to both parties. This attempted overreach is not only extremely concerning but runs counter to federal court precedent and the opinions of leading legal experts.”
Additionally, Joe Cohn, the legislative and policy director for the Foundation for Individual Rights and Expression, said, “They are greenlighting all kinds of weaker procedures that will predictably lead to serious violation of due process rights necessary for procedures to be fundamentally fair.”
Some experts on the matter disagreed. “This was not a throwing out of all the due process protections that were incorporated in the 2020 regs. The Department of Education has left in some of the most important protections for respondents while also broadening the scope of protections that are provided to complainants,” said Brett Sokolow, president of the Association of Title IX Administrators.
An additional area of concern was that the final decision on a case could be made by the Title IX coordinators themselves, which is prohibited under the current regulations.
Carter said, “That is a very bad idea, because having one person be responsible for all of those tasks increases the possibility of mistakes being made or biases being introduced.”
The removal of many of the Trump-era requirements regarding hearings and investigations will give colleges more flexibility to create and use their own policies to respond to sexual harassment.
“We have moved from a prescriptive set of rules to a set of principles,” Sokolow said of the new proposal. “Those principles give boundaries or guardrails but allow for a ton more flexibility than the 2020 [regulations] with respect to how schools will implement the actual practices.”
Critics argued that the Trump-era regulations placed too many administrative rules on Title IX coordinators that did not allow them to develop policies to serve the unique needs of their college.
This too, however, could raise legal challenges. Alyssa Rae McGinn, vice president of investigations at Dan Schorr, a company that advises colleges on Title IX, said that “in returning so much discretion to schools, the door opens once again for inconsistency in procedures across the country,” and these inconsistencies will likely “give rise to legal challenges after implementation.”
Creating Protections for LGBTQ Students
Perhaps the most anticipated and controversial aspect of the new proposal is the expansion of protections from discrimination based on sexual orientation and gender identity.
Protections for discrimination based on gender identity and sexual orientation were already included in Title IX after the Biden administration issued a notice of interpretation in June 2021, following the Supreme Court’s ruling that LGBTQ discrimination was the same as sex discrimination.
Since then, many colleges have already interpreted Title IX to include discrimination through this lens, however, the proposal officially codifies the rule in the Title IX regulations for the first time in history.
The Obama administration also issued a notice that expanded protections for LGBTQ students under Title IX, but this was overturned by the Trump administration.
Many have welcomed this addition as a win for the LGBTQ community, which experiences sexual harassment and abuse at disproportionally higher rates.
Diego Sanchez, the director of advocacy, policy and partnerships at Parents, Families, and Friends of Lesbians and Gays (PFLAG) National, said, “For parents and guardians whose loved ones are LGBTQ+ and planning for their next step in higher education, today’s proposed guidance offers a sign of hope. Even if a student attends school in a place like Texas or another state with local laws that might be harmful, they would be protected from harassment and discrimination at college.”
However, the proposed rules did not change any of the Trump-era expansions to exemptions that many religious colleges that receive federal funding have used to bypass Title IX requirements. The inclusion of LGBTQ students specifically in Title IX is expected to not only create a host of legal issues regarding freedom of speech and freedom of religion, but more applications for religious exemptions are expected as well.
The Religious Accountability Project said in a statement that the Biden administration failed “to acknowledge the needs of some of the most vulnerable LGBTQ+ people in America, LGBTQ+ students caught in the trap of taxpayer-funded religious educational institutions.”
The department will be conducting a separate rule-making process for how Title IX applies to athletics due to the recent uptick in legal challenges on transgender students’ involvement in sports.
Transgender students participating in sports teams that correspond with their gender identity has sparked a furry from Republicans who believe gender can only be defined in biological terms.
Senior department officials were not able to share details on when the rule-making process on athletics will begin.
