WASHINGTON — The Biden administration on Thursday proposed new rules governing how schools must respond to sex discrimination, rolling back major parts of a Trump administration policy that narrowed the scope of campus sexual misconduct investigations and cementing the rights of transgender students into law.
The proposal would overhaul an expansive rule finalized under former Education Secretary Betsy DeVos, which for the first time codified how colleges and K-12 schools investigate sexual assault on campus. The proposal would also address discrimination under Title IX, the federal law signed 50 years ago Thursday that prohibits the exclusion from or denial of educational benefits on the basis of sex in federally funded programs.
The Trump administration rules, issued in 2020, narrowed the definition of sexual harassment, expanded the due process rights of students accused of harassment and assault, relieved schools of some legal liabilities, and required schools to hold courtroom-like proceedings called “live hearings” that allowed cross-examination of parties. DeVos’ rules did not define “sex-based harassment,” per se, and the administration had taken the position that Title IX did not extend to gender identity.
The Biden administration maintained that the current rules “weakened protections for survivors of sexual assault and diminished the promise of an education free from discrimination.”
“Our proposed changes would fully protect students from all forms of sex discrimination,” Education Secretary Miguel A. Cardona said in remarks Thursday morning, adding that the new rule would “make it clear, those protections include discrimination based on sexual orientation and gender identity.”
The proposal is certain to set up a clash with state and federal lawmakers and draw legal action from conservative groups that had begun railing against the department’s position, issued last year, that transgender students were protected under the federal law.
The proposed Biden regulations, which need to go through a lengthy public comment period before taking effect, would revise a number of key provisions related to sexual assault investigations.
The Biden rules expand the definition of what constitutes sexual harassment and expand the types of episodes, such as incidents reported outside of their educational programming, that schools are obligated to investigate. The rules would also make live hearings optional, no longer a requirement, and allow schools to employ a process that establishes the credibility of the parties and witnesses, though it does not require cross-examination.
But one of the major changes in the Biden rule is the inclusion of sex-based harassment to include “stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity,” according to the proposed rules.
The department will issue a separate regulation on how Title IX applies to athletics, including how schools should determine a students’ eligibility to participate on a male or female athletic team.
The issue has become a culture war flashpoint in the last year as Republican-dominated legislatures in at least 18 states have introduced restrictions on transgender participation in public school sports, and at least a dozen states have passed laws with some restrictions.
“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” Cardona said. “And so we decided to do a separate rule-making on how schools may determine eligibility while upholding Title IX’s nondiscrimination guarantee.
“I firmly reject efforts to politicize these protections and sow division in our schools,” he added.