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Nadra Nittle
Originally published by The 19th
Advocates for the LGBTQ+ community and sexual violence survivors are largely applauding the Department of Education’s newly released federal regulations to protect the rights of these groups in schools, though they also expressed reservations about the lack of clear protections for transgender athletes.
Unveiled on Friday, the final rule under Title IX includes provisions that strengthen the rights of sexual violence survivors during investigations and of LGBTQ+ individuals to experience school in a way that aligns with their gender identity. Title IX is a historic civil rights law preventing federally funded academic institutions from practicing sex discrimination.
The new regulations stop short of stating that transgender students have the right to play on the sports teams that correspond with their identities, a move that supporters of these young people hoped the Department of Education would make given the series of state laws enacted in recent years to prevent trans and nonbinary youth from participating in athletics. Instead, education officials have left rulemaking related to sports and gender identity for future consideration.
A coalition of equal rights supporters representing over 20 groups — including LGBTQ+ advocacy groups the Human Rights Campaign, GLSEN and the Trevor Project — issued a joint statement on Friday arguing that the new regulations do too little to protect transgender athletes.
“This regulation does not go far enough in making the law’s protections clear for all student athletes,” the statement said. “Currently, 37 percent of transgender, nonbinary, and intersex youth live in states with laws that ban them from participating in sports consistent with their gender identity. As with all students, Title IX protects transgender, nonbinary and intersex student athletes from discriminatory policies, as the Biden administration has already argued in court and a federal appeals court upheld just this week.”
The coalition called on the Biden administration to “finish the job” by leaving no doubt in the regulations that transgender, nonbinary and intersex student-athletes have protections under Title IX.
While the coalition criticized the lack of clarity in the regulations about nonbinary student-athletes, it characterized the final rule overall as a “milestone” for protecting the rights of LGBTQ+ students to use school bathrooms, attend school dances with same-sex dates or mention their gender identity or sexual orientation in their schoolwork.
Secretary of Education Miguel Cardona said on Thursday during a call with reporters that Title IX serves to ensure that no one in a federally funded school faces sex discrimination. He also discussed how the law has historically protected women and girls.
“For over half a century, Title IX has opened doors, expanded access and promised fairness,” he said. “Before Title IX was passed in 1972, women and girls didn’t have equal access to education in this country. That was unacceptable then, and it’s unfathomable now.”
Since President Joe Biden took office, advocates have pressed his administration to quickly adopt new Title IX regulations. They raised concerns that the former Secretary of Education Betsy DeVos, appointed by then-President Donald Trump, rolled back Title IX safeguards in 2020 by narrowing the definition of sexual harassment, giving protections to alleged perpetrators, failing to protect LGBTQ+ students and instituting controversial rules for questioning during sexual misconduct hearings. Although Title IX is a federal law, each administration takes a different approach to enforcing its regulations about sex discrimination.
After suggesting updates to the regulations in 2022, the Department of Education fielded over 240,000 public comments that it took under consideration during its rulemaking process. The newly finalized Title IX rule under Cardona not only repeals many of the DeVos-era changes but also represents “the most comprehensive coverage under Title IX since the regulations were first promulgated in 1975,” said Catherine Lhamon, assistant secretary for the Office of Civil Rights at the Department of Education, during Thursday’s call with reporters. “The final regulations encourage reporting of sex discrimination under Title IX and require institutions to respond promptly and effectively.” The 2020 regulations asked little of schools, only tasking them with not deliberately ignoring sexual harassment, she added.
Tracey Vitchers, executive director of It’s On Us, a nonprofit that works to end college sexual assault, said that requiring schools to promptly investigate sexual misconduct is an important change from the DeVos-era guidelines.
“The 2020 regulation eliminated the prior 60-day time limit for schools to complete Title IX investigations, which resulted in institutions dragging investigations out for months on end,” she said. Sometimes, investigations would span multiple semesters and summer breaks, she said. This resulted in student survivors graduating before investigations ended. This “was obviously very harmful to student survivors who were looking for a swift resolution to their allegations,” Vitchers said.
The new regulations also undo the DeVos requirement that called for sexual violence survivors and their accused perpetrators to undergo live cross-examinations during misconduct hearings. Advocates for survivors said this mandate was designed to scare them.
“Fundamentally, the live cross-examination requirement was never about upholding due process for respondents, but rather was an intimidation tactic intended to push survivors out of the Title IX investigation process,” Vitchers said. “The requirement for live cross-examination is really emblematic of the harmful thesis at the core of the 2020 regulations that women must be able to withstand a more onerous investigation process and that their claims must meet a higher burden of proof in order to protect college men from false allegations of sexual assault.”
As Biden faces an election rematch with former President Donald Trump, the presumptive Republican nominee, Department of Education officials made a point to contrast the updated Title IX regulations with those of the Trump era. Rather than weaken protections for sexual violence survivors, LGBTQ+ people and pregnant people, their regulations fortify them, they said.
The final rule also describes what sex-based harassment and sex discrimination are, noting that schools must provide an educational environment free of biases “based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Department of Education officials said that the new regulations could address the disturbing trend of pornographic deepfake images circulating in schools, a phenomenon that was not even a possibility when Title IX was first established in the 1970s. Lhamon said that if deepfake harassment creates a hostile environment in a school setting that it could also constitute sex discrimination under the federal law.
“The school would need to take prompt and effective steps to ensure nondiscrimination for the students on the basis of sex moving forward,” she said.
The regulations acknowledge that stopping someone from experiencing school in a way that’s consistent with their gender identity causes harm, but they also do not prevent religious institutions from discriminating against LGBTQ+ students or staff.
“The Title IX statute itself exempts religiously controlled institutions, and the regulations are unchanged in tracking that statute,” Lhamon said.
Although the new regulations don’t protect LGBTQ+ students in religious institutions or, at present, protect the rights of trans and nonbinary student-athletes, the conservative group the Independent Women’s Forum announced Friday that it would sue the Biden administration for safeguarding gender identity.
The regulations also stress the rights of parents and guardians to advocate for their children and the needs of individuals who allege they have experienced sex discrimination. They protect students and staff from reprisal, including from peers, related to their rights under Title IX.
“Students who experience sexual violence or discrimination shouldn’t have to weigh our safety against our ability to go to class or participate in campus life,” said Emily Bach, a New York-based college student, in a statement. Bach is an organizer with Know Your IX, a project of Advocates for Youth, which fights for sexual health, rights and justice. “The Biden Administration’s updated Title IX rule will make sure that students who experience harm can come forward and seek support without jeopardizing our ability to graduate on time or get a degree,” she said.
Vitchers said that survivors and advocates have fought tirelessly for these reforms dating back to when the Trump administration took office.
“It’s On Us has long advocated for updated Title IX regulations that prioritize the protection of all students and survivors of sexual assault,” she said. “We are glad that the Biden administration finally fulfilled its promise to student survivors to return Title IX to its original intent of protecting their civil rights in the aftermath of sexual violence.”
