The Biden administration on Tuesday proposed changes to the federal civil-rights statute banning sex discrimination in federally funded education programs, including expanding protections to sexual orientation and gender identity.
One proposed change “would make clear that preventing any person from participating in an education program or activity consistent with their gender identity would subject them to more than de minimis harm on the basis of sex and therefore be prohibited, unless otherwise permitted by Title IX or the regulations.”
If adopted, the rule change would bar universities any other federally funded institutions from maintaining men and women’s sports and sex-segregated spaces like locker rooms and dormitories.
The move is the latest in a years-long argument over the definition of "sex" that has now spanned three administrations and comes on the 50th anniversary of the law. The Obama administration initially expanded the definition, writing in a Dear Colleague letter that "Title IX's sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity."
The Obama administration then used the new definition to issue mandates to schools across the country requiring that schools use a transgender student's chosen pronouns and that they open bathrooms, locker rooms, overnight accommodations, and some sports teams to students based on their chosen gender identity.
However, the Trump administration's Education Department and Department of Justice later rescinded that guidance, saying that if "sex" is redefined it should be done by Congress or the Supreme Court.
The Supreme Court ruled in 2020 that the meaning of discrimination "on the basis of sex" in the workplace encompassed "gender identity," though it did not expand the definition of sex to include gender identity. It said that to discriminate against someone for their "gender identity" necessarily entails discrimination on the basis of sex.
Secretary of Education Miguel Cardona told reporters on Thursday that the 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.”
The proposed changes would expand the definition of sexual harassment to cover a broader range of misconduct, including any behavior that creates a “hostile environment” for students, and would repeal some Trump-era mandates on how schools must deal with sexual misconduct allegations.
The new rules would no longer require cross-examination in hearings or that live hearings be held in college sexual misconduct cases. Schools would be allowed to investigate and punish assaults that happen off-campus.
The proposal would allow schools to investigate sexual misconduct without a formal complaint and would require most college employees to notify campus officials if they learn of potential sex discrimination.
President Biden had vowed on the campaign trail to put an end to the Trump-era rules, arguing they would “shame and silence survivors.”
However, the new rules would still enforce some of the Trump administration’s mandates, including instructing schools to approach cases with the belief that an accused student is innocent until the conclusion of a grievance procedure. The new rules would also continue to allow for informal resolutions of sexual misconduct complaints if both accuser and the accused agree.
The proposed rules are open for public comment for the next 60 days. At the conclusion of the public comment period, the department will be required to address each point in writing before the new rules are finalized, which likely would not come until at least next year, according to the Associated Press.
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