The U.S. Department of Education released one of its long-awaited rules governing Title IX on Friday, drawing praise from advocates for sexual assault survivors and condemnations from some free speech and legal groups.
Title IX is the sweeping law that prohibits sex-based discrimination in federally funded colleges and K-12 schools. The Biden administration has pledged to restore protections for sexual assault survivors that it says were weakened under the previous administration.
The new rule will take effect in August, giving colleges just a few months to come into compliance. It makes several key changes from the Trump-era regulations, including by no longer requiring live hearings in sexual misconduct cases, broadening the complaints that colleges must investigate, and offering protections to LGBTQ+ students.
Advocates for sexual assault survivors had been pushing the Education Department to release the final Title IX regulations, which were first promised last May and subject to multiple delays.
The department is also planning to publish a separate Title IX rule focused on athletics, though The Washington Post reported that the agency is postponing that release until after this fall’s elections.
An expansion of ‘critical protections’
Friday’s regulations include LGBTQ+ protections by prohibiting discrimination based on gender identity and sexual orientation, a change that has drawn praise from some advocacy groups. It also has protections for pregnant students and those who are parents.
Over 20 civil rights and advocacy groups, including the National Women’s Law Center and the National Center for Transgender Equality, expressed support for the rule shortly after its announcement.
“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 said in a statement.
Some lawmakers have also broadly praised the rules.
“The Education Department’s final Title IX regulations mark a monumental step in our fight to address sexual harassment, assault, and discrimination in K-12 and higher education — all while preserving the rights of the accused,” Rep. Bobby Scott, a Democrat from Virginia, said in a Friday statement.
The new regulations ensure LGBTQ+ students are fully protected from discrimination based on sexual orientation and gender identity — an expansion of “critical protections,” said Scott, who serves as the ranking member of the House’s education committee.
Concerns over due process and free speech
The regulations have also drawn legal threats over their expanded LGBTQ+ protections.
The Independent Women’s Forum, a conservative nonprofit, panned the rule’s gender identity protections as unlawful. The group, along with its Independent Women’s Law Center, pledged in a Friday statement to sue over the new regulations.
They voiced concerns that the regulations would result in institutions allowing transgender women to play on sports teams that align with their gender identity and threaten students and employees with discipline if they don’t use peoples’ preferred pronouns.
In a public comment to the draft regulation, in September 2022, the two groups argued that the rule’s gender identity protections would encourage schools to punish protected speech, including around gender, sex roles and pronoun usage.
However, the department pushed back against free speech concerns in the preamble to its regulation. Agency officials said they carefully defined sex-based harassment, which requires that it be “so severe or pervasive” that it limits or denies someone’s ability to participate in an educational program or activity.
“The definition is aimed at discriminatory conduct — conduct that is unwelcome as well as sex-based, and that has an impact far greater than being bothersome or merely offensive,” officials wrote.
Moreover, Friday’s regulations do not govern athletics, with a separate sports-focused Title IX rule still forthcoming.
That rule would bar institutions from implementing blanket bans on transgender student-athletes participating on sports teams that align with their gender identities. However, it would allow institutions to exclude transgender athletes under some circumstances for reasons like safety and fairness.
Other groups have worried that the regulations will wipe away due process rights for students accused of sexual violence. For instance, Title IX experts have previously expressed concerns about the single-investigator model, which allows one person to serve as the investigator and decision-maker in a case.
The Trump-era regulations did away with the single-investigator model, but the new regulations will allow colleges to once again employ this method. The new regulations also relax other requirements championed by due process advocates, such as mandating that colleges conduct live hearings with the opportunity for cross-examination through advisors.
The Foundation for Individual Rights and Expression, a free speech group, raised concerns with the final regulations Friday, saying they threaten First Amendment and due process rights.
“When administrators investigate the most serious kinds of campus misconduct, colleges should use the time-tested tools that make finding the truth more likely,” Will Creeley, legal director at FIRE, said in a statement. “But the new regulations no longer require them to do so.”