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New Title IX Rule Has Explicit Ban on Discrimination of LGBTQ+ Students

LGBTQ+ students will receive explicit legal protection from sex discrimination and harassment under a long-awaited revision of Title IX rules the Biden administration released Friday, April 19, nearly two years after it originally proposed the overhaul.

The revised regulations for Title IX, the law outlawing sex discrimination at federally funded schools, expand the definition of sex-based discrimination and harassment to explicitly prohibit discrimination based on sex stereotypes, pregnancy or related conditions, sexual orientation, gender identity, and sex characteristics.

The U.S. Department of Education already interprets Title IX to include protection against discrimination based on gender identity and sexuality due to the 2020 Supreme Court ruling in Bostock v. Clayton County, Ga., that federal employment law prohibits that type of discrimination. But the new rules make that explicit under Title IX without room for interpretation otherwise.

“These regulations make crystal clear that everyone can access schools that are safe, welcoming, and respect their rights,” U.S. Secretary of Education Miguel Cardona said during a call with reporters on Thursday, April 18. “It clarifies that Title IX’s prohibition of sex discrimination includes all forms of sex discrimination.”

Even as the administration released the long-anticipated rewrite of Title IX regulations, it didn’t release another set of widely anticipated Title IX rules that have also been in the works for more than a year.

Those rules address transgender athletes’ participation in sports.

If finalized as proposed, those rules would challenge 24 Republican-led state laws banning transgender athletes from joining athletic teams that align with their gender identity. The rules would prohibit those categorical bans on transgender athletes’ participation in school sports while carving out some exceptions, such as in highly competitive sports at the high school or collegiate levels.

Those athletics-related amendments, which the department proposed in April 2023, are still going through the rulemaking process after the federal agency received more than 150,000 public comments.

The finalized rules the administration released Friday also broadened definitions for sex discrimination, sexual harassment, and assault to include incidents that create a “hostile environment” that “denies or limits a person’s ability to participate in or benefit from a [school’s] education program or activity.”

Under the regulations, schools are required to “take prompt and effective action” to end sex discrimination and use the Obama-era “preponderance of evidence” standard of proof when evaluating complaints.

The rules are a sharp reversal from the Trump administration, in which former U.S. Secretary Betsy DeVos applied a narrower definition of sex-based harassment and required schools only to respond to assault claims with “clear and convincing evidence.”

Much of the impact will be felt on college campuses, as the rule revision addresses the process they must follow to adjudicate sexual assault claims, no longer requiring live hearings and where victims and alleged perpetrators could cross-examine each other.

The “new final rule will restore and strengthen vital protections that were weakened by the prior administration while reaffirming our long-standing commitment to fundamental fairness,” Jennifer Klein, director of the White House Gender Policy Council, said in the Thursday call with reporters.

What do the rules mean for schools?

The finalized rules will mean a lot of work for Title IX coordinators and administrators at school districts over the next few months, as the new rules take effect Aug. 1.

The department released a resource for schools as they work to draft policies that align with the new rules. In it, the department states that schools must adopt, publish, and implement a “nondiscrimination policy.”

Schools can decide what this policy looks like, though, as long as it meets the law’s minimum requirements to explicitly state that the school “does not discriminate on the basis of sex and prohibits sex discrimination in any education program or activity that it operates, as required by Title IX, including in admission and employment.”

Under the new rules, schools are required to provide a “notice of nondiscrimination” to students, parents, guardians, employees, applicants for admission or employment, and all unions and professional organizations with contracts or agreements with the school.

Schools are also required to adopt, publish, and implement grievance procedures for sex discrimination complaints. A school might use the grievance procedure document to list the people covered under the nondiscrimination policy—including any students and employees as well as any other person who experienced sex discrimination while participating in school activities—and detail the process the school will use to respond to the complaint.

The Association of Title IX Administrators, which certifies Title IX coordinators and other administrators, announced Friday it is offering a new certification course for both K-12 schools and colleges and universities to align with the updated ruling. The AASA, The School Superintendents Association, also released resources for its members on how to comply with the updated rules.

What about sports?

The rules released Friday do not address perhaps the thorniest Title IX issue from the past few years: student participation in athletics, which has become a divisive topic as a growing number of states ban transgender youth from joining sports teams that align with their gender identity.

In April 2023, the department released proposed amendments to Title IX that would prohibit schools from adopting policies that bar all transgender athletes from participating on a team that aligns with their gender identity. However, the proposed amendments would allow schools to prevent some students from playing sports if there were a concern about competitive fairness.

If finalized as proposed, the amendments would challenge 24 state laws that ban transgender youth from participating in sports, according to the Movement Advancement Project, an LGBTQ+ advocacy group that tracks such state laws.

On the Thursday press call, education department officials said the rulemaking process for the athletics rule is “ongoing.” They didn’t provide an estimated date on when they would finalize it.

Rules receive support from LGBTQ+ advocates, rebuke from Republicans

Melanie Willingham-Jaggers, executive director of GLSEN, an advocacy group for LGBTQ+ youth in K-12 schools, described the finalized rules as a step forward for LGBTQ+ students.

“We must reject the discriminatory policies—many in violation of Title IX—that too many states have rushed to pass in an unseemly race to bully and target marginalized students,” Willingham-Jaggers said in a statement. “It is up to all of us to continue to rise up for LGBTQ+ youth by fighting to ensure robust enforcement of Title IX and the adoption of inclusive policies in school districts across the country.”

However, the rules drew criticism from Republican politicians in the U.S. House.

“This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender,” said Rep. Virginia Foxx, R-N.C., who chairs the chamber’s education and workforce committee. “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.”

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