Biden Admin Moves to Expand Title IX Protections to LGBTQ+ Students

• The proposed rules formally protect LGBTQ+ students under Title IX.
• The definition of sexual harassment would also be expanded to cover a wider range of misconduct.
• The proposal would eliminate a rule requiring colleges to hold live hearings to judge sexual misconduct cases.
• The rewrite was announced on the 50th anniversary of Title IX.

President Joe Biden wants to formally extend Title IX protections to LGBTQ+ college students as part of an overhaul of the landmark law.

On Wednesday, the president 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, announced on the 50th anniversary of Title IX, would for the first time formally protect LGBTQ+ students. 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 regulations reflect the Department's commitment to give full effect to Title IX, ensuring that no person experiences sex discrimination in education, and that school procedures for addressing complaints of sex discrimination, including sexual violence and other forms of sex-based harassment, are clear, effective, and fair to all involved," Catherine Lhamon, assistant secretary for civil rights at ED, said in the department's statement announcing the proposal.

The proposed changes will now face a 60-day public comment period before ED finalizes the rules. The department promised to issue a separate proposal to address Title IX's application in athletics, which would have major implications for collegiate sports.

Biden's proposed rules also reverse Trump-era rules for reporting sexual assault and harassment cases.

President Barack Obama's Title IX rules had required colleges to investigate Title IX complaints within 60 days. Victims who dropped out or transferred could still file a complaint, and schools could find respondents guilty if the evidence showed they were more likely guilty than not.

The Trump administration rolled back many of these provisions.

Under Trump-era rules, schools had no time limit to resolve Title IX complaints, and both the victim and perpetrator had to be currently affiliated with the school for the college to investigate. A higher burden of proof was set for finding an alleged perpetrator guilty and survivors were subjected to cross-examination at a live hearing. The Trump administration also limited the definition of sexual harassment.

Advocacy groups later sued ED over the Trump administration's rules. The courts sided with the department on most points, but the U.S. District Court invalidated one rule that prohibited those hearing cases from "considering any 'statement' from a person who did not submit to cross-examination at the live hearing."

Biden's proposal would no longer require live hearings or accuser cross-examination. Instead, institutions could require live hearings if they so choose, or if state law requires it.

The proposal likewise states that schools must implement their own system for investigating the validity of complaints. Any grievance must "give the parties an equal opportunity to present relevant evidence and respond to the relevant evidence of other parties."

Schools must also use the "preponderance-of-the-evidence standard" of proof in these investigations unless the school uses the "clear-and-convincing-evidence standard" in all other comparable proceedings, ED stated.

The new rules were announced Thursday after repeated delays; ED originally said it intended to release them in April. They faced opposition before they were even released because they were widely expected to extend protections to LGBTQ+ students.

A coalition of mostly right-leaning and conservative organizations penned a letter to Lhamon in early April expressing concern over ED's intention to rewrite Title IX rules. In the letter, the group argues against extending protections to LGBTQ+ students.

"We are alarmed by the administration's extremist position that ED should extend Title IX, by regulatory fiat, to prohibit discrimination on the basis of gender identity and that simply acknowledging a student's sex, and providing certain services and activities separately but comparably to each sex, could constitute unlawful discrimination," the letter states.

Those who signed the letter include people whom the GLAAD Accountability Project has flagged for pushing anti-transgender commentary, including Ryan Anderson of the Heritage Foundation and Bethany Kozma of Keystone Policy.

Some schools already skirt Title IX rules and discriminate against LGBTQ+ people via religious exemptions.

An ED fact sheet covering changes in the Title IX rewrite proposal does not mention rolling back the religious exemption. The Department of Justice in a June 2021 court filing said that it would support the right of religious institutions to exercise religious exemptions.