Proposed changes to federal Title IX rules could mean broader protections for LGBTQ students and clearer processes for reviewing sexual assault and harassment allegations. But it will be months before schools and educators know just how far those protections will go.
The U.S. Department of Education released the 700 pages of proposed rules on the 50th anniversary of the landmark legislation that banned sex discrimination in schools, colleges, and universities. For the first time, Title IX would include sexuality and gender identity in the definition of sex-based discrimination. The proposed rules would also roll back Trump-era policies that established stricter processes for reviewing cases of sexual assault and harassment.
But the proposals leave plenty of room for interpretation in key areas and sidestep others, including the controversial issue of transgender students’ participation in sports.
Here are a few key things to consider during a 60-day public comment period, after which the Education Department will issue final regulations.
What constitutes ‘discrimination’ for LGBTQ students?
With the explicit mention of gender identity and sexuality in the proposed rules, LGBTQ students would have an easier time claiming that they’ve been discriminated against.
“I want the same opportunities afforded to my daughter, and my son, and my transgender cousin so they can achieve their potential and reach their dreams,” U.S. Secretary of Education Miguel Cardona said in announcing the proposed rules on June 23.
But the proposals still leave room for interpretation.
For example, they would clarify that schools would not be able to discriminate based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity.” The Education Department included extensive definitions of each type of discrimination. Among those, rules clarify that sex stereotypes include “fixed or generalized expectations regarding a person’s aptitudes, behavior, self-presentation, or other attributes based on sex.”
But even with expansive definitions, it remains to be seen how the rules would actually impact LGBTQ students. For example, the rules do not specify that schools must use a student or educator’s preferred pronouns, an issue that has sparked a handful of state and federal court cases.
They also don’t expressly require schools to allow students and employees to use restrooms that are consistent with their identities. Restroom use has been at the center of fierce fights in state and federal court cases. In Grimm v. Gloucester County School Board, a federal appeals court ruled that the Virginia school district violated Title IX when it refused to allow Gavin Grimm, a transgender man, to use the men’s restroom. The school district unsuccessfully tried to appeal that decision last year, when the U.S. Supreme Court declined to take it up.
Nor do the proposed rules address efforts to remove LGBTQ-centered books from libraries or prevent discussions of gender identity and sexuality in the classroom. Between July 2021 and March 2022, nearly 3,000 school have banned books, many of which had LGBTQ-related content, according to a study from PEN America, a free-speech advocacy organization.
What will happen to transgender athletes?
The proposed rules sidestepped one major question: Does Title IX require schools to let students play a sport that is consistent with their gender identity? The Education Department will conduct a separate rulemaking process to determine Title IX’s relation to athletics. Department officials weren’t able to provide a timeline for that process.
But even without an official stance, LGBTQ advocates are encouraged by some of the wording used in the proposed regulations.
The proposed rules state that “adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity subjects a person to more than de minimis harm on the basis of sex.” The rules clarify that some programs, such as single-gender schools, would be allowed under Title IX as long as they don’t cause more than “de minimis,” or insignificant, harm on students.
That wording by itself may be a hopeful sign for people who want to allow transgender athletes to participate in sports consistent with their identity, said Elana Redfield, federal policy director for the Williams Institute, a University of California Los Angeles research center dedicated to LGBTQ issues.
“That seems to be suggesting that even in programs where it’s deemed to be OK—for example, athletics separating women and men—they’re still going to look for whether there’s disproportionate harm to a particular individual or group of people,” Redfield said.
Transgender athletes still are likely to remain in the throes of a battle over their rights while federal officials conduct a separate review process. Eighteen states have passed laws preventing the ability of transgender youth to participate in sports consistent with their gender identity, according to the Movement Advancement Project, a think tank dedicated to researching social issues.
What impact will the proposed regulations have on state laws relating to LGBTQ issues?
The proposed rules come after a year of state and local efforts to limit the discussion of sexuality and gender identity in classrooms, prevent parents from seeking gender-affirming care for their transgender students, and ban books with LGBTQ-related content.
The Biden administration has taken a strong stance in opposition to those efforts. Last week, President Joe Biden signed an executive order on LGBTQ equality, directing the Education Department to support students who are affected by “harmful state and local laws and practices.” Local and state lawmakers have proposed 300 discriminatory bills, the president said.
While Title IX doesn’t override state and local laws, it does give the federal government the power to remove funding from educational institutions that violate it.
The Education Department’s office for civil rights is tasked with evaluating, investigating, and resolving sex discrimination complaints. The office also investigates “systemic violations based on sources of information other than complaints,” according to its website.
The proposed rules provide more clarity on Title IX processes for review of sex discrimination, harassment, and assault cases. They would require schools to adopt procedures that allow for “prompt and equitable resolution of complaints.” Schools would also be required to use the Obama-era “preponderance of evidence” standard for evaluating complaints, which is a less strict standard than the Trump-era “clear and convincing evidence” requirement.
What comes next?
The proposed rules have sparked opposition among conservative lawmakers and policy groups that have called on parents to fight back. The groups, including the Heritage Foundation and Parents Defending Education, argue the rules on Title IX processes disenfranchise the accused and believe the added rights for LGBTQ students push a liberal agenda.
In a statement released Thursday, Nicole Neily, president of Parents Defending Education, referred to the rules as the “Must Say They” Title IX rewrite, alluding to pronouns often used by nonbinary people. The proposed Title IX rules wouldn’t explicitly require schools or students to use they/them pronouns.
“The Biden Administration’s ‘Must Say They’ Title IX rewrite is a show of force by the federal government on behalf of activists that would unconstitutionally compel the speech of schoolchildren and college students,” Neily said in a statement.
The proposed rules will be available for public comment on regulations.gov for 60 days after they are published to the Federal Register.
A version of this article appeared in the July 13, 2022 edition of Education Week as Proposed Title IX Overhaul: Key Questions on What’s Next