The rights of LGBTQ+ students will be protected by federal law and victims of campus sexual assault will have new safeguards under rules finalized by the Biden administration on Friday.
The new provisions are part of a revised Title IX regulation issued by the Department of Education, fulfilling a campaign promise made by President Joe Biden. He had vowed to dismantle rules created by former Education Secretary Betsy DeVos, which added new protections for students accused of sexual misconduct.
Conspicuously absent from Biden’s policy, however, is any mention of transgender athletes.
The administration originally planned to include a new policy that would prohibit schools from issuing an outright ban on transgender athletes, but that provision was put on hold. The delay is widely seen as a political maneuver during an election year when Republicans have rallied around a ban on transgender athletes in girls’ sports.
Instead, Biden is officially undoing sexual assault regulations put in place by his predecessor and current election-year opponent, former President Donald Trump. The final policy drew praise from victims’ advocates, while Republicans said it affects the rights of accused students.
The new rule makes “crystal clear that everyone has access to schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said.
“No one should face harassment or discrimination just because of who they are, who they love,” Cardona told reporters. “Unfortunately, this happens all too often.”
Biden’s rule is intended to clarify schools’ obligations under Title IX, the 1972 women’s rights law that bans sex discrimination in education. It applies to colleges and elementary and secondary schools that receive federal money. The update should take effect in August.
One of the biggest changes is the new recognition that Title IX protects LGBTQ+ students — a source of deep conflict with Republicans.
The 1972 law does not directly address this issue, but the new rules clarify that Title IX also prohibits discrimination on the basis of sexual orientation or gender identity. LGBTQ+ students who face discrimination are entitled to a response from their school under Title IX, and those who fail because of their school can seek redress from the federal government.
Many Republicans say Congress never intended such protections under Title IX. A federal judge previously blocked the Biden administration’s guidelines to the same effect after 20 Republican-led states challenged the policy.
Representative Virginia Foxx, a Republican from North Carolina and chair of the House Education and the Workforce Committee, said the new rule threatens decades of progress for women and girls.
“This final line dumps kerosene on the already raging fire that is the Democrats’ contemptuous culture war, which aims to radically redefine sex and gender,” Foxx said in a statement.
The revision was proposed nearly two years ago but was delayed by a comment period that drew 240,000 responses, a record for the Department of Education.
Many of the changes are intended to ensure that schools and colleges respond to complaints of sexual misconduct. Overall, the rules expand the types of misconduct institutions must address and provide greater protections for students who make allegations.
Chief among the changes is a broader definition of sexual harassment. Schools must now address any unwelcome sex-based behavior that is so “severe or pervasive” that it limits a student’s equal access to education.
The DeVos rules required conduct to be “severe, pervasive, and objectively offensive,” a higher bar that pushed some forms of misconduct outside the scope of Title IX.
Colleges will no longer be required to hold live hearings so students can cross-examine each other through representatives — a signature provision of the DeVos rules.
Live hearings are allowed under the Biden rules, but they are optional and have new restrictions. For example, students should be able to participate in hearings remotely, and schools should exclude questions that are ‘unclear or intimidating’.
As an alternative to live hearings, university officials can interview students individually so that each student can propose questions and get a recording of the answers.
These hearings were a major point of contention among victims’ advocates, who said it forced sexual assault survivors to face their attackers and discouraged people from reporting assaults. Supporters said it gave accused students a fair trial to question their accusers, arguing that universities had become too quick to judge accused students.
Advocates for the victims applauded the changes and urged colleges to implement them quickly.
“After years of pressure from students and survivors of sexual violence, the Biden administration’s Title IX update will make schools safer and more accessible for young people, many of whom have suffered irreparable harm while fighting for protection and support,” said Emma Grasso Levine , a senior manager at the group Know Your IX.
Despite the focus on safeguards for victims, the new rules retain certain protections for accused students.
Under the new policy, all students must have equal access to presenting evidence and witnesses, and all students must have equal access to evidence. All students are allowed to bring an advisor to campus hearings, and colleges must have an appeals process.
Generally, accused students will only be punishable after being found responsible for misconduct, although the scheme allows for ’emergency’ removals if this is deemed a matter of campus safety.
The latest revision continues a back-and-forth political battle as presidential administrations repeatedly rewrite the rules surrounding campus sexual misconduct.
The DeVos rules were themselves a revision of an Obama-era policy intended to force colleges to take allegations of sexual assault on campus more seriously. Now, after years of near-constant change, some colleges are pushing for a political middle ground to end the whiplash.
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