Biden revises Title IX, adding biological males to landmark women’s rights law

The Biden administration on Friday released its long-awaited overhaul of Title IX, inserting “gender identity” into the watershed civil rights amendment aimed at eliminating discrimination against girls and women in education.

Nearly two years in the making, the Education Department’s final rule “builds on the legacy of Title IX” by extending protections to transgender students, meaning the 52-year-old law hailed for advancing educational opportunities for women will include biological males who identify as female.

“The rule prohibits discrimination and harassment based on sexual orientation, gender identity, and sex characteristics in federally funded education programs, applying the reasoning of the Supreme Court’s ruling in Bostock v. Clayton County,” said the Education Department fact sheet.

The final rule takes effect Aug. 1. The department stressed that the regulations do not address transgender eligibility in scholastic sports, which will be covered in a separate rule expected to be released after the presidential election in November.

The revisions announced Friday specify that schools “must not separate or treat people differently based on sex in a manner that subjects them to more than de minimis harm, except in limited circumstances permitted by Title IX.”

Title IX of the Education Amendments of 1972 states that its ban on sex discrimination does not apply to “maintaining separate living facilities for the different sexes.”

“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,” said the fact sheet.

“Our nation’s educational institutions should be places where we not only accept differences but celebrate them,” Education Secretary Miguel Cardona said on a press call. “Places that root out hate and promote inclusion, not just because it’s the right thing to do but because our systems and institutions are richer for it.”

The newly promulgated regulatory framework also reworks the Trump administration’s 2020 Title IX rulemaking, which strengthened due process rights for students accused of sexual harassment by, for example, making it clear that the accused were innocent until proven guilty.

Condemning the final rule was Rep. Virginia Foxx, North Carolina Republican and chair of the House Education and the Workforce Committee, who accused the administration of placing Title IX “squarely on the chopping block.”

“This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender,” she said. “The rule also undermines existing due process rights, placing students and institutions in legal jeopardy and again undermining the protections Title IX is intended to provide.”

She added that “evidently, the acceptance of biological reality, and the faithful implementation of the law, are just pills too big for the Department to swallow – and it shows.”

Former Education Secretary Betsy DeVos, who oversaw the 2020 Title IX overhaul, said the final rule “guts the half century of protections and opportunities for women and callously replaces them with radical gender theory.”

The most anti-woman regulation of all time. #ProtectTitleIX https://t.co/galOKxqvX3

— Betsy DeVos (@BetsyDeVos) April 18, 2024

Critics warned that the final rule’s consequences would include requiring schools to use students’ opposite-sex preferred pronouns, mandating the use of facilities such as restrooms and locker rooms based on gender identity, and dissolving protections for the accused.

Although the gender identity addition drew the most attention, advocates for campus due process raised the alarm about the impact on sexual misconduct investigations and adjudications.

The Trump administration’s 2020 rulemaking gave schools the option of using the “clear and convincing evidence” standard in evaluating allegations of sexual wrongdoing, but the Biden final rule returns to the weaker “preponderance of the evidence” standard.

Ms. DeVos said the regulation “seeks to U-turn to the bad old days when sexual misconduct was sent to campus kangaroo courts.”

The Education Department said the rules “reaffirm the Department’s core commitment to fundamental fairness for all parties,” but the Foundation for Individual Rights and Expression said the revisions “threaten student free speech and due process rights.”

“Justice is only possible when hearings are fair for everyone. So 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,” said Will Creeley, the foundation’s legal director.

Those cheering the rule included a coalition of 23 left-of-center groups led by the National Women’s Law Center, which credited the Biden administration with “restoring and reinforcing vital civil rights protections for all students to access school spaces and programs free from sex discrimination.”

“By rescinding the Trump administration’s harmful and restrictive sex harassment rule, and making protections clearer for survivors, pregnant and parenting students, and LGBTQIA+ students, this rule will ensure every student has the freedom to learn and to be themselves,” the coalition statement said.

The groups urged the administration to “finish the job by providing further clarification for inclusive protections in athletics.”

Although the department insisted the rule had no impact on scholastic sports, critics on the right weren’t buying it.

“In an election year, the Biden administration’s lie that this Title IX rewrite does not impact women’s sports is a dishonest attempt to hide their woke agenda from the American people,” the Independent Women’s Forum said.

Lawsuits are sure to follow. The Independent Women’s Law Center said it was preparing to sue the administration.

Alliance Defending Freedom legal counsel Rachel Rouleau said the organization “plans to take action to defend female athletes, as well as school districts, teachers, and students who will be gravely harmed by this unlawful government overreach.”

Putting it more bluntly was Parents Defending Education President Nicole Neily, who said, “We look forward to suing the Administration over this policy soon.”