Biden’s new Title IX rules protect LGBTQ+ students, but rules on transgender sports are still on hold

The rights of LGBTQ+ students will be protected by federal law and victims of campus sexual assault will gain new safeguards under rules finalized Friday by the Biden administration.

The new provisions are part of a revised Title IX regulation issued by the Department of Education, fulfilling a campaign promise from President Joe Biden. He had promised to dismantle rules created by former Education Secretary Betsy DeVos, who added new protections for students accused of sexual misconduct.

Notably absent from Biden’s policy, however, is any mention of transgender athletes.

The administration originally planned to include a new policy that would prohibit schools from banning transgender athletes entirely, but that provision was suspended. The delay is widely seen as a political maneuver during an election year in which Republicans rallied around a ban on transgender athletes in women’s sports.

Instead, Biden is officially undoing sexual assault rules put in place by his predecessor and current election year opponent, former President Donald Trump. The final policy drew praise from victims’ advocates, while Republicans said it erodes the rights of accused students.

The new rule makes “it clear that everyone can have access to safe, welcoming schools that respect their rights”, said the Secretary of Education, Miguel Cardona.

“No one should face bullying or discrimination just because of who they are, who they love,” Cardona told reporters. “Unfortunately, this happens all too often.”

Biden’s regulation aims to clarify schools’ obligations under Title IX, the 1972 women’s rights law that prohibits discrimination on the basis of sex in education. It applies to colleges and K-12 schools that receive federal money. The update will take effect in August.

Among the biggest changes is the new recognition that Title IX protects LGBTQ+ students — a source of deep conflict with Republicans.

The 1972 law does not directly address the issue, but the new rules clarify that Title IX also prohibits discrimination based on sexual orientation or gender identity. LGBTQ+ students who face discrimination will have the right to a response from their school under Title IX, and those who fail at their schools may appeal to the federal government.

Many Republicans say Congress never intended such protections under Title IX. A federal judge previously blocked the Biden administration’s guidance to the same effect after 20 Republican-led states challenged the policy.

Representative Virginia Foxx, Republican of North Carolina and chair of the House Education and Workforce Committee, said the new regulations threaten decades of advancement for women and girls.

“This final rule pours kerosene on the already raging fire that is Democrats’ contemptuous culture war aimed at radically redefining sex and gender,” Foxx said in a statement.

The revision was proposed nearly two years ago but was delayed by a comment period that drew 240,000 responses, a record for the Department of Education.

Many of the changes are aimed at ensuring that schools and colleges respond to complaints of sexual misconduct. In general, the rules expand the type of misconduct that institutions are required to address and provide more protections for students who come forward with allegations.

Chief among the changes is a broader definition of sexual harassment. Schools must now address any unwelcome conduct based on sex that is so “severe or pervasive” that it limits students’ equal access to education.

Under DeVos’ rules, the conduct had to be “severe, pervasive, and objectively offensive,” a higher standard that pushed some types of misconduct outside the scope of Title IX.

Colleges will no longer be required to hold live hearings to allow students to cross-examine each other through representatives — a provision signed into DeVos’ rules.

Live hearings are allowed under Biden’s rules, but they are optional and impose new limits. Students should be able to participate in hearings remotely, for example, and schools should prohibit questions that are “unclear or disruptive.”

As an alternative to live hearings, college staff can interview students separately, allowing each student to suggest questions and obtain a recording of the responses.

These hearings were a major point of contention among victim advocates, who said it forced survivors of sexual violence to confront their attackers and discouraged people from reporting assaults. Supporters said this provided accused students with a fair process to question their accusers, arguing that universities had become too quick to rule against accused students.

Victim advocates applauded the changes and urged colleges to implement them quickly.

“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 have suffered irreparable harm while fighting for protection and support,” it said. Emma Grasso Levine, a senior group manager at Know Your IX.

Despite the focus on safeguards for victims, the new rules preserve certain protections for accused students.

All students must have equal access to the presentation of evidence and witnesses under the new policy, and all students must have equal access to evidence. All students will be able to bring an advisor to on-campus hearings, and colleges must have an appeals process.

In general, accused students cannot be punished until they are found responsible for the misconduct, although the regulation allows for “emergency” removals if it is considered a campus safety issue.

The latest revision continues a back-and-forth political battle as presidential administrations repeatedly rewrite the rules around campus sexual misconduct.

The DeVos rules themselves were a revision of an Obama-era policy that aimed to force colleges to take allegations of sexual assault on campus more seriously. Now, after years of near-constant change, some colleges have pushed for a political compromise to end the whiplash.

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