Happy 52nd Anniversary to Title IX! Here’s What You Need to Know about Biden’s New Title IX Rule.

 

Title IX turns 52 this year, and students across the country are looking forward to starting the 2024-25 school year with a new Title IX rule in place. In April 2024, after multiple delays, the Biden administration’s Department of Education finally released a new Title IX rule that strengthens protections for student survivors of sex-based harassment and clarifies protections for LGBTQI+ students and pregnant and parenting students.  

Why does this new rule matter? 

Biden’s new rule arrived after students have suffered nearly four years under Trump’s sexual harassment rule, which has not only encouraged but also required schools to be complicit in gender-based violence. Specifically, the Trump rule required schools to ignore many reports of sexual harassment and put student survivors through uniquely unfair and burdensome investigations that are not required for any other type of student or staff misconduct. Plainly stated, the Trump rule relied on anti-survivor tropes and stereotypes that assume reports of sexual harassment are uniquely less credible and warrant more scrutiny in order to be taken seriously.  

Biden’s new rule also comes at a much-needed moment for LGBTQI+ students and pregnant and parenting students. As state and local attacks on LGBTQI+ youth—especially transgender, nonbinary, and intersex youth—grow ever more vicious, and as access to abortion in the states becomes increasingly restricted after the fall of Roe v. Wade, students across the country need clear federal protections against these forms of sex discrimination in their schools.  

What’s in the new rule? 

For the most part, Biden’s new Title IX rule is a step in the right direction, but a major failing is its omission of explicit protections for transgender, nonbinary, and intersex students in school sports. We are still closely reviewing the rule, but here are some major ways schools’ Title IX obligations will change once the rule becomes effective on August 1, 2024:  

  1. All sex discrimination: The new rule requires schools to respond appropriately to all known sex discrimination, which includes sex-based harassment and discrimination against pregnant and parenting or LGBTQI+ students. When a student reports sex discrimination, their school must offer supportive measures that help them learn and feel safe in school, such as a one-way no-contact order, schedule changes, counseling, academic adjustments. And when a student files a complaint of sex discrimination, their school must follow more detailed steps, as laid out in the rule, to ensure a fair investigation or informal resolution (such as a restorative process). Schools must also train all employees every year on how to recognize, report, and respond to sex discrimination. Except in limited circumstances, schools cannot disclose any personally identifiable information they received while carrying out their Title IX duties. State and local policymakers can also create additional protections for students, as long as they don’t conflict with the federal Title IX rule. 
  2. Sex-based harassment: The new rule defines “sex-based harassment” to include sexual harassment, sexual assault, dating violence, domestic violence, and stalking, as well as harassment based on sex stereotypes, sex characteristics (including intersex traits), sexual orientation, gender identity, and pregnancy or related conditions. Schools must address any sex-based harassment that limits a student’s access to education, even if it is not “severe and pervasive,” which is the more burdensome level required by the Trump rule; and even if the complainant has graduated, transferred, or dropped out by the time they report the harassment. Schools must address incidents of sex-based harassment (and other sex discrimination) that occur in a school activity inside the U.S., even if it occurs off campus or online. In addition, schools must address any hostile environment that arises in a school activity, even if the underlying incident occurs outside of school or outside the U.S. Furthermore, colleges are no longer required to conduct live hearings with direct cross-examination and instead have more flexibility to create fair and reliable investigations that aim to not harm or retraumatize survivors. Unfortunately, the Biden rule retains some harmful parts of Trump rule, like requiring schools to presume that sex-based harassment (or other sex discrimination) did not occur from the outset and during an investigation; allowing schools to dismiss a complaint when the respondent has transferred, graduated, or retired; and allowing schools in limited situations to use a standard of proof that tilts in favor of harassers and against victims. 
  3. Anti-LGBTQI+ discrimination: While federal courts and agencies have already said for decades that Title IX protects students from discrimination based on their sexual orientation, gender identity, or sex characteristics (like intersex traits), the Title IX regulations now explicitly state this for the first time. This means schools are now on clear notice that they must allow transgender, nonbinary, and intersex students to participate in classes and activities, use restrooms and locker rooms, and dress and groom themselves in a manner consistent with their gender identity. At the same time, it is frustrating that the Biden administration has not finalized its proposed athletics rule, which would prohibit categorical anti-trans sports bans in schools. To be clear, regardless of whether there is an explicit athletics Title IX rule, the federal courts have already said that anti-trans sports bans violate Title IX. However, the Biden administration must cross the finish line and clarify these protections in the Title IX rule too, so that extremist states and politicians know that their anti-trans sports bans are a clear violation of federal law. The administration has indicated that it’s unlikely to issue an athletics rule until after the 2024 elections, but we need them to act now.
  4. Discrimination against pregnant and parenting students: The new rule defines “pregnancy or related conditions” to include pregnancy, childbirth, abortion or miscarriage, lactation, and medical conditions or recovery from any of these conditions. School officials must now proactively tell students who are pregnant or have a related condition about their rights under Title IX. In addition, schools must consult with these students about what reasonable accommodations they need to have equal access to education, such as breaks during class, excused absences, rescheduled exams, or a larger desk. Furthermore, students who are pregnant or have a related condition must be allowed to participate in a separate program of a similar quality, to take a leave of absence for as long as is medically required, to be reinstated to their prior academic and extracurricular status upon return from their leave, and to lactate in a private, non-bathroom space. They cannot be required to get approval from anyone (such as a doctor) to participate in a school program unless the school requires the same approval for all students. Unfortunately, the Biden rule retains an archaic rule from 1980 that allows schools to discriminate against parenting students (versus non-parenting students) and non-birthing parents (versus birthing parents), as long as they discriminate equally across genders.  

What if my governor told schools not to follow the rule? What if my state sued to get rid of the new rule? 

Both the U.S. Constitution and the Title IX rules state that Title IX preempts state law if there is a direct conflict. Even the Trump Title IX rule recognized this. So, if your school receives federal funds and does not comply with the new Biden rule, it risks being investigated by the U.S. Department of Education and losing those federal funds. 

Even if your state has a lawsuit against the rule or a court decision temporarily blocking the rule, your school should nevertheless continue working toward the rule’s implementation deadline of August 1. This is because a temporary block could be swiftly reversed by a higher court at any time. At that point, a school that isn’t in compliance risks losing its federal funding, and it can’t expect to get an additional grace period from the U.S. Department of Education just because it unwisely failed to prepare for compliance. 

Want to learn more about Biden’s new Title IX rule?  

  • Check out our short fact sheet on the new rule, which includes a handy chart comparing the Trump and Biden rules. 
  • Stay tuned for a longer and more detailed explainer of the new rule, with comprehensive analysis of each major rule provision. 
  • Want to learn more? Look out for more updates about the new Title IX rule.