Advocates, Politicians React to Biden’s Proposed Title IX Overhaul

The proposed changes expand protections to LGBTQ+ students and reverse Trump-era rules criticized for weakening protections for survivors of sexual assault.

June 29, 2022 · Updated on June 29, 2022

Edited by Darlene Earnest
Advocates, Politicians React to Biden’s Proposed Title IX Overhaul
Higher Ed Policy
Photo by Bill Clark / Contributor / CQ-Roll Call, Inc. / Getty Images

  • The proposed rules were released June 23, the 50th anniversary of Title IX.
  • The expansion of protections for LGBTQ+ students garnered backlash from cultural conservatives.
  • The proposed elimination of a rule requiring colleges to hold live hearings to judge sexual misconduct cases led some groups to raise due process concerns.

The Biden administration's planned overhaul of Title IX is sparking debate across higher education and politics.

On June 23, President Joe Biden and the Department of Education (ED) released long-awaited proposed rule changes for the civil rights law that prohibits schools or educational programs that receive federal assistance from discriminating against anyone on the basis of sex.

The proposed rules would formally protect LGBTQ+ students for the first time. They would likewise replace Trump administration rules covering sexual misconduct and establish new requirements for how colleges and universities address Title IX complaints.

The proposed Title IX changes were lauded and panned by advocacy groups and lawmakers — and the divide was not always along partisan lines.

Protections for LGBTQ+ Students Praised

Some of the country's highest-ranking Democrats quickly came out with statements praising Biden's proposed changes.

U.S. Rep. Robert Scott of Virginia, Democratic chairman of the House Committee on Education and Labor, said the proposal restores the intent of Title IX to provide equal access to education for all students in the U.S.

"The Education Department's new proposed Title IX regulations mark a monumental step in our fight to address sexual harassment, assault, and discrimination in K-12 and higher education — all while preserving the rights of the accused," Scott said in a statement. "By expanding the critical protections under this law, the new regulations would help ensure that all students, including LGBTQI+ students, are fully protected from discrimination based on sex, sexual orientation, and gender identity."

LGBTQ+ advocacy groups were also quick to praise the department for formally recognizing that Title IX protects against discrimination based on sexual orientation or gender identity. Jennifer Levi, transgender rights project director at GLBTQ Legal Advocates & Defenders (GLAD), said the regulations provide essential clarity for schools.

"Transgender young people are especially vulnerable to bullying, harassment and violence in school settings because of escalating state legislative attacks," Levi said in a statement. "The proposed rules issued today by the Department of Education send an important message to LGBTQ students and their families that federal law protects them."

The American Civil Liberties Union (ACLU) also praised the Biden administration for expanding the definition of discrimination.

"Protecting LGBTQ students from discrimination recognizes the humanity of all people," Louise Melling, ACLU deputy legal director, said in a statement. "When LGBTQ youth are supported and affirmed, they are not only more likely to succeed in school but have better mental health outcomes."

Critics Claim New Protections 'Erase Women'

A common refrain from critics of the Biden administration's Title IX moves is that the expansion of the law to include gender identity somehow erodes protections for women.

U.S. Sen. Marsha Blackburn, a Republican representing Tennessee, said flatly, "The left is erasing women by trying to rewrite Title IX standards."

U.S. Rep. Virginia Foxx of North Carolina, the ranking Republican on the House Committee on Education and Labor, called the rewrite a conduit for "the Left's woke agenda."

"For an administration that claims to carry the torch for 'equality,'" Foxx said, "these proposed regulations are steeped in hypocrisy. Policies such as these serve one purpose, and one purpose only: to tilt the scales in favor of radical partisans."

Criticism hasn't only come from Republicans.

Democrat Tulsi Gabbard, formerly a U.S. representative from Hawaii and candidate for the Democratic presidential nomination in 2020, also spoke out against the proposal.

"A lot of women fought very, very hard to put Title IX in place, which is why it's so disturbing to see the Biden administration and other very influential people in our society so easily pushing to not only get rid of that progress, but essentially erase women," Gabbard said.

That's not a sentiment shared by Billie Jean King, the legendary tennis pro and longtime champion of gender equality who testified before Congress on behalf of Title IX in 1972.

"I think probably Title IX has probably helped suburban white girls the most and then the next 50 years we really have to concentrate on getting more and more girls of color," King said in an interview with the Los Angeles Times. "We've got to make sure that we've taken care of girls with disabilities, developing that area. We have to help the LBGT community, especially trans athletes."

New Rules for Sexual Assault Claims Raise Due Process Concerns

Many Democrats decried the Trump administration's rules governing sexual assault claims that were issued toward the end of his presidency. Those rules required Title IX complaints to be heard in live hearings that may involve cross-examining the accuser.

Former U.S. Education Secretaries John King and Arne Duncan said in a 2020 joint statement that former President Donald Trump's changes "unnecessarily burden victims of sexual assault, and can deepen trauma for students by increasing the chances of victims being exposed to their accused assailants."

Women's groups shared similar concerns over the effect the requirement for live hearings would have on the likelihood of people reporting assaults and harassment.

Under Biden's proposed rule, colleges and universities may still choose to hold live hearings, but they are not required to do so. The rewrite also permits schools to use a so-called "single-investigator model" in Title IX cases.

Some advocacy groups fear that the lack of required hearings removes due process protections for the accused.

Melling of the ACLU expressed this concern in a statement.

"The proposed regulation laudably corrects the double standard imposed by the Trump administration, which dramatically reduced schools' obligations to address sexual harassment as compared to other forms of harassment," Melling said. "But we are concerned that the proposed rules deny those facing serious penalties in college disciplinary proceedings important procedural rights, including live hearings and cross-examination."

The Foundation for Individual Rights and Expression (FIRE) also worried that Biden's proposal weakens a student's right to active legal representation and allows a single campus administrator to serve as judge and jury in investigations.

"That's a recipe for constitutional violations that courts are unlikely to ignore," FIRE Policy Director Joe Cohn said in a statement.

The American Council on Education (ACE) was among the advocacy groups welcoming the Biden administration's change. The group called the Trump rules that remain in place "the most complex and controversial in ED's history."

"These rules have been problematic both for institutions and for survivors of sexual assault," ACE said in a statement. "They've turned campus disciplinary hearings into adversarial, court-like tribunals that often subject students to vigorous cross-examination by highly paid outside attorneys."