The U.S. Department of Education’s final Title IX regulations, set to take effect on August 1, 2024, aim to extend protections against sex discrimination, ensuring a safer and more inclusive educational environment. These regulations broaden the definition of sexual harassment and adapt grievance procedures to be more accommodating to victims. It also formally expands the reach of Title IX to include discrimination on the basis of gender identity as well as the first regulations around pregnancy rights.

Critics, including the policy organization FIRE, argue that removing procedural protections such as mandatory live hearings and cross-examinations in the new Title IX regulations could undermine the fairness and effectiveness of proceedings, potentially compromising justice and expressive rights. They contend that these changes may sacrifice due process for political ends, thereby weakening the traditional protections afforded under Title IX. House Education and Workforce Committee Chairwoman Virginia Foxx criticized the final rule, suggesting that it could undermine decades of advancement under Title IX by radically redefining sex and gender, jeopardizing legal standards, and disregarding biological realities and the original intent of the law.

“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation’s schools free from sex discrimination. These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.” – U.S. Secretary of Education Miguel Cardona said in a news release.

“The Department of Education has placed Title IX and the decades of advancement and protections for women and girls that it has yielded, squarely on the chopping block. This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender. The rule also undermines existing due process rights, placing students and institutions in legal jeopardy and undermining the protections Title IX intends to provide. Evidently, the acceptance of biological reality and the faithful implementation of the law, are just pills too big for the Department to swallow – and it shows.” – U.S. House Education & the Workforce Committee Chair Virginia Fox (R-NC) said in a statement.

Key Changes

Broad Protection Against Sex Discrimination: The new rules reinforce protections against all forms of sex discrimination for students and employees in educational settings. This includes more comprehensive measures against sex-based harassment and clearer processes for dealing with such issues.

Support for Vulnerable Groups: There is a strong emphasis on supporting LGBTQI+ students by explicitly protecting them from discrimination based on sexual orientation, gender identity, and sex characteristics. This move formalizes protections that were included under Title IX following a Supreme Court ruling that equated discrimination against LGBTQ individuals with sex discrimination. (This point ledes most of the news coverage, so far).

Changes in Grievance Procedures: The updated regulations remove the requirement for live hearings and cross-examinations in the grievance processes of colleges and universities. However, institutions can opt to retain these elements if they choose. This change aims to make the process less daunting for complainants, providing options such as remote hearings and more flexible reporting timelines, including after the complainant has left the institution.

Enhanced Autonomy for Educational Institutions: Schools get more flexibility to design their grievance procedures, aiming for the needs of their communities without overly prescriptive federal guidelines. This change intends to allow institutions to implement principles of non-discrimination more effectively, though it may also lead to variability in how cases are handled across different campuses. However, there are some instances where there are new mandates, namely increased mandatory reporting obligations for school employees.

Continued Controversy and Legal Challenges: These regulatory shifts have sparked significant debate. Proponents view them as crucial steps toward more equitable educational environments, particularly for marginalized groups. However, critics argue that some changes, particularly around due process protections for the accused, may undermine legal rights and lead to inconsistent disciplinary practices.

News Coverage

Inside Higher Ed: New Title IX Rules Are Out. Here’s What You Need to Know

Politico: Education Department boosts legal defenses for transgender students

Chronicle of Higher Education: Colleges, the Title IX Changes Are Finally Here. What’s in Them?

Associated Press: Biden’s new Title IX rules protect LGBTQ+ students, but transgender sports rule still on hold