The Biden administration on Friday released its long-anticipated rewrite of Title IX, but left out any mention of transgender-identifying male athletes in women’s sports.
The Biden administration’s draft proposal included a radical revision that would have forced forced federally funded educational institutions to allow men to compete on their women’s sports teams unless they demonstrate it compromises student safety. Under that rule, the burden of proof would have been shifted to schools, which in effect would have to create separate policies for every sport.
But with the 2024 contest against former president Donald Trump in full swing, the Biden administration opted to punt on the issue of males competing in women sports. With so much litigation surrounding the issue, it’s unclear when the trans sports guidance will come down.
While the revised rule does not specifically mention trans athletes, it does add sexual orientation and gender identity to the list of protected classes, which may open the door to litigation if a school or university that receives federal funding refuses to allow students to access private spaces reserved for the opposite sex, such as bathrooms and locker rooms. The language could also be used to bring legal challenges against a school that refuses to allow a male student to compete against females, though the law does not specifically address whether that constitutes discrimination.
“I never thought I’d see the day where Title IX would be used to harm women, but sadly, that day has come,” Former Trump Education Secretary Betsy DeVos said in a statement to National Review. “The Biden Administration’s radical rewrite of Title IX guts the half century of protections and opportunities for women and callously replaces them with radical gender theory, as Biden’s far-left political base demanded. This regulation is an assault on women and girls.”
Friday’s announcement does, however, reverse Trump-era sexual assault rules, rolling back some due-process protections for accused students and lowering the standard for finding a student guilty of sexual misconduct.
The rule prohibits “all forms of sex-based harassment, including sexual violence and unwelcome sex-based conduct that creates a hostile environment by limiting or denying a person’s ability to participate in or benefit from a school’s education program or activity.”
With the new rule, investigators involved in campus cases now have the option to hold a hearing of both parties, as was required under the Trump-era policy, or hold individual meetings where a party or witness will be asked questions offered by the other party.
The timeline for the new Title IX release had been delayed multiple times. First expected in May 2023, the release was postponed to October then again to March 2024. The Education Department received over 230,000 comments during the draft period.
Though the most politically charged part of the regulation regarding women’s sports has yet to be delivered, Friday’s rule still put Title IX “on the chopping block,” North Carolina representative Virginia Foxx and GOP chair of the House Education and Workforce Committee told Inside Higher Ed.
“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,” she said.
Zach Kessel contributed reporting.