Biden Makes Major Change to Title IX Rules, Gives Trans Women Same Legal Protections as Biological Women, Guts Due Process for Accused Men

‘The Biden admin has just officially abolished Title IX as we knew it. Now, sex = gender,’ Riley Gaines posted.

Leigh Vogel/Getty Images for National Women's Law Center
Students, parents, educators and advocates gather in front of the White House to press the Biden Administration to release the long-awaited final Title IX Rule on December 05, 2023 at Washington, DC. Leigh Vogel/Getty Images for National Women's Law Center

The Biden administration unveiled its final Title IX rules Friday, adding “gender identity” and sexual orientation protections to the landmark civil rights law aimed at protecting women’s rights and sports in schools. The changes have ignited a firestorm from free speech advocates, women’s rights activists, and many on the right.

The new rules, which take effect August 1, expand the scope of Title IX — the 1972 law prohibiting sex-based discrimination in schools that receive federal funding — to include protections from discrimination based on sexual orientation and “gender identity.”

Critics say that this waters down legal protections meant for women, not trans women, and that this will stifle free speech by expanding the definition of harassment to include things like “misgendering”, when someone refers to a person by their biological sex rather than their preferred gender identity.

“The final regulations clarify that a school must not separate or treat people differently based on sex in a manner that subjects them to more than de minimis harm,” the Education Department’s Title IX fact sheet, released Friday, says. “The final regulations further recognize that preventing someone from participating in school (including in sex-separate activities) consistent with their gender identity causes that person more than de minimis harm.”

The new Title IX rules also change how schools handle sexual assault and harassment complaints, unravelling much of the due process protections for accused students instituted during the Trump administration under his education secretary, Betsy DeVos. Under the Biden administration’s new rules, colleges are no longer required to hold live hearings or allow cross examination of witnesses during their quasi-judicial proceedings. The bar for determining guilt is also being lowered from “clear and convincing” to a “preponderance of the evidence.”

President Biden and his education secretary, Miguel Cardona. Chip Somodevilla/Getty Images

Ms. DeVos instituted due process protections in sexual misconduct hearings in response to more than 600 lawsuits from accused students, almost all men, alleging they were unfairly treated by their schools under Obama-era rules. The Biden administration’s new rules are largely a return to the “believe all women” attitude that governed Title IX hearings during the Obama Administration.  

“Today’s regulations mean one thing: America’s college students are less likely to receive justice if they find themselves in a Title IX proceeding,” the legal director for the Foundation for Individual Rights and Expression, Will Creeley, said in a statement. “Rather than playing ping-pong with student rights, the Department of Education should recognize that removing procedural protections for students is the exact opposite of fairness.”

“And by expanding the definition of sexual harassment, the new regulations threaten expressive rights,” Mr. Creeley said.   

The former Fox News star, Megyn Kelly, was less diplomatic. “Do not ever let any Democrat tell you they care about women’s rights ever again,” she wrote on X, in a post that went viral. “These are a nuclear level attack on women’s rights and men’s due process rights. Joe Biden must go.”

Former collegiate swimmer Riley Gaines testifies during a House Oversight Subcommittee on Health Care and Financial Services hearing on Capitol Hill December 5, 2023 at Washington, DC. Drew Angerer/Getty Images

The finalized rules come after months of delays. Mr. Biden campaigned in 2020 on putting a “quick end” to the Trump administration’s Title IX rules, which he said gave “colleges a green light to ignore sexual violence and strip survivors of their rights.” More than three years into his presidency, Mr. Biden is fulfilling that campaign promise.

Sexual assault survivor advocacy groups celebrated Mr. Biden’s Title IX changes. “Today’s reversal of the Trump/DeVos 2020 Title IX rule marks a historic victory for student survivors,” the chief executive of End Rape on Campus, Kenyora Parham, said in a statement.

Conspicuously absent from the new Title IX rules is the Biden administration’s transgender athletics policy, which would bar schools from making blanket bans on transgender participation in women’s sports. The administration released this proposed rule in April 2023 to major backlash from Republicans and women’s sports advocates.

The delay in releasing a final transgender athletics rule is largely seen as political, since this is an election year and polling shows a majority of Americans think sports teams should be designated based on sex at birth, not gender identity. The expansion of Title IX — a regulation instituted to protect women and women’s athletics — to include gender identity is causing enough backlash as it is.

Emma Grasso Levine and Lily James speak as students, parents, educators and advocates gather in front of the White House to press the Biden Administration to release the long-awaited final Title IX Rule. Leigh Vogel/Getty Images for National Women’s Law Center

“The Biden admin has just officially abolished Title IX as we knew it. Now, sex = gender identity,” former NCAA swimming champion and advocate for protecting women’s sports, Riley Gaines, posted to X.

Ms. Gaines listed some of the implications the expanded definition of Title IX protections — from sex-based to sex, gender identity, and sexual orientation — could mean for students and schools. Included in that list are: “Men could be housed in dorms with women,” “men will have full access to bathrooms, locker rooms, etc.,” and transgender women could win scholarships meant for biological women.

It’s unclear whether the Biden Administration will release its Title IX athletics policy before the November election. The due process changes and expansion of the purview of Title IX could become big election year issues on their own. And if Mr. Trump wins in November, expect a whole new round of Title IX changes.

Correction: Will Creeley is the legal director for the Foundation for Individual Rights and Expression. An earlier version misspelled his surname.

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