Biden Administration Proposes Significant Changes to Gender Equity Law Title IX

The Biden administration proposed sweeping changes Thursday to federal rules under the gender equity law Title IX that would revoke Trump administration mandates surrounding sexual misconduct that advocates for assault survivors said discriminated against victims.

The new regulation would also extend Title IX’s prohibition on discrimination based on sex to sexual orientation and gender identity, giving landmark protections to transgender students. The current Title IX regulation does not address the rights of transgender students.

The proposed rules are likely to kick off a heated battle over the obligations of schools to address sexual misconduct, the balance between the rights of victims and accused students, and the rights of transgender students.

"Our proposed changes would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone, and make clear those protections include discrimination based on sexual orientation and gender identity," Education Secretary Miguel Cardona told reporters Thursday.

The proposed rules would keep some Trump-era mandates, such as provisions ordering schools to presume accused students to be innocent until grievance procedures end and to continue to permit informal resolutions of sexual misconduct complaints if both accuser and the accused agree. They would also allow schools to use a clear-and-convincing-evidence standard of proof — which generally means about 75 percent certain — to determine whether accused students violated sexual misconduct rules, but only if the schools also use it in other discrimination cases, like those involving racial harassment. Otherwise, schools must use the preponderance-of-the-evidence standard, or about 51 percent certain, the same threshold used in most civil lawsuits.

The proposal departs from the current regulation in a number of ways, however, including that live hearings would no longer be required in college sexual misconduct cases, cross-examination would not be required in hearings, and schools would be allowed to investigate and punish assaults that take place off-campus. The proposed rules would also allow investigators to decide the outcomes of cases but require that all Title IX coordinators, investigators and decision-makers not have conflicts of interest or biases for or against complainants or respondents. The Biden administration’s proposal would also allow schools to investigate and sanction sexual misconduct without formal complaints.

The public will be able to submit comments on the proposal for the next 60 days. The Education Department will then need to address each point in writing before the regulation can be finalized. The process is likely to take several months, if not longer, to finalize.