Finalized Biden Title IX regulations add protections for transgender students

The Biden administration on Friday unveiled a final set of sweeping changes to Title IX, the federal civil rights law prohibiting sex-based discrimination at government-funded schools, after more than a year of delays and mounting pressure from advocacy groups. 

The final changes, which reinstitute protections for student survivors of sexual assault and harassment that were rolled back during the Trump administration, will take effect Aug. 1. 

“These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights,” Education Secretary Miguel Cardona said Friday in a statement. 

The administration’s final update to the landmark civil rights law, which also bolsters protections for LGBTQ students, was originally expected last May but was delayed several times, frustrating advocates wooed by President Biden’s campaign promise of a “quick end” to Title IX regulations instituted by Trump-era Education Secretary Betsy DeVos. 

The Education Department has attributed the delay to an unprecedented number of public comments on the proposal, which the department is required by law to consider before issuing a final rule. More than 240,000 comments were submitted during a 30-day period, nearly twice the amount the department received during its last Title IX revamp in 2020. 

The administration’s new regulations aim to equip schools with clear-cut instructions to promptly and effectively respond to “all sex discrimination, not limited to sexual harassment,” said Catherine Lhamon, the Education Department’s assistant secretary for civil rights. 

The final rule expands the definition of sex discrimination to include sexual orientation and gender identity, applying the reasoning of a 2020 Supreme Court decision that found existing civil rights laws protect employees from discrimination based on transgender status. 

The new Title IX regulations could under certain circumstances prevent individuals from adhering to some Republican-backed laws that LGBTQ advocates have said create a hostile environment for transgender students, such as measures that bar individuals from using facilities that match their gender identity or prevent schools from requiring staff and students to use a transgender person’s name and pronouns, a senior administration official said. 

The final changes are sure to draw swift criticism from Republicans, who have slammed the proposal’s transgender student protections as an attack on protections for cisgender women and girls.

The administration has yet to finalize a separate rule governing athletics eligibility. The proposal unveiled by the Education Department last April would prohibit schools from adopting policies that categorically exclude transgender student-athletes, though high schools and colleges would still be able to limit how and when trans students are able to compete in accordance with their gender identity.

Twenty-four states since 2021 have passed laws that bar transgender student-athletes from competing on sports teams that match their gender identity, according to the Movement Advancement Project, a nonprofit group that tracks LGBTQ laws. Court orders are blocking the enforcement of laws passed in Arizona, Idaho, West Virginia and Utah. 

The Biden administration’s Title IX revamp strikes most of the changes made under former President Trump, including a narrowed definition of sexual harassment and a requirement that schools conduct live hearings with cross-examination for investigations of sexual misconduct. 

The new regulations also establish a lower burden of proof for survivors and students alleging sex discrimination, replacing the former administration’s “clear and convincing” evidence standard with a “preponderance of the evidence” standard of proof.

The Biden administration’s final update does, however, maintain several “major provisions” from the previous regulations, the Education Department said, to ensure consistency while schools update required procedures to more effectively address sex discrimination.

Protections have also been strengthened for pregnant employees or students, such as providing clean and private lactation spaces for students and employees and other reasonable modifications.