Biden Administration Releases Title IX Final Rule

The Biden administration introduced new regulations that solidify protections for LGBTQ+ students under federal law and overturn several Trump-era policies related to sexual misconduct in educational settings. These rules, effective from Aug. 1, broaden Title IX’s scope to include sexual orientation and gender identity, expanding the range of harassment complaints schools must investigate.

U.S. Secretary of Education Miguel A. Cardona emphasized that these regulations ensure safe and inclusive school environments.

The administration's release of the updated regulations – twice delayed – is in an “unofficial” form. The official publication of the regulations in the Federal Register is expected within the coming days.

The regulations align with the Supreme Court's Bostock v. Clayton County ruling, extending protections to transgender students, which the Trump administration had denied. While providing stronger protections for LGBTQ+ students, the regulations do not address whether transgender students can participate in sports teams based on their gender identity. The administration clarified that while gender identity exclusion violates Title IX, the new rules don't extend to single-sex facilities or sports teams. The Biden administration stated that the final rule regarding these issues will be released post-election.

The final rule offers flexibility in how schools conduct sexually related investigations. The new rules allow in-person hearings but do not mandate them. The investigator or person adjudicating the case may question witnesses in separate meetings or employ a live hearing. Higher education institutions vigorously advocated for the repeal of the provision that required in-person, “live hearings” in which students accused of sexual misconduct, or their lawyers, could confront and question accusers in a courtroom-like setting.

These new rules also allow schools to use a “preponderance of evidence” standard, a lower burden of proof than the previous rules required. Under this new standard, administrators need only to determine whether it was more likely than not that sexual misconduct had occurred. However, administrators may choose a higher standard of “clear and convincing evidence” if they use that standard in other similar proceedings.

Another significant change includes a broader definition of sex-based harassment. Under the new definition, conduct must be so “severe or pervasive” that it limits or denies a person’s ability to participate in their education. The prior version required it to be both severe and pervasive. Additionally, this new final rule removed the requirement that schools only investigate incidents that occur on their campuses.

Finally, the rule includes provisions barring discrimination based on pregnancy, including childbirth, abortion and lactation. For example, schools must accommodate a student’s need to attend medical appointments, whether they be for prenatal visits or pre- and post-abortion care visits.

Legal challenges to the final rule are expected.