President-elect Donald Trump was going to undo the Biden administration's sweeping rewrite of Title IX rules. A federal judge beat him to it.Matt Bishop/imageSPACE via ZUMA Press Wire
When Donald Trump was president the first time, his Department of Education promulgated a set of rules under Title IX that made it harder for sexual assault survivors on school campuses to seek justice—limiting the definition of sexual harassment, for example, and forcing victims into complaint processes that magnified their trauma. Then the Biden Administration set about undoing the Trump-era regulations—part of a broader rewrite of Title IX rules that also added protections for transgender and pregnant students.
Incoming Trump officials—led by his nominee for education secretary, Linda McMahon—were expected to revert to the old Title IX rules soon after the inauguration. Instead, a federal judge has done their work for them.
Just days before Biden is set to leave office, Chief Judge Danny Reeves of the US District Court of Eastern Kentucky rejected the administration’s Title IX protections for trans students, siding with a handful of Republican state attorneys general who argued that harassment on the basis of gender identity doesn’t constitute sex discrimination. But Reeves didn’t stop there. In refusing to uphold protections for queer and trans students, he vacated the Biden administration’s entire Title IX rewrite, including provisions aimed at making it easier for sexual assault survivors to hold their assailants accountable and for pregnant students to stay in school.
Passed in 1972 , Title IX—which applies to schools and colleges that receive federal funds—asserted that no person shall be denied access to any educational program or activity “on the basis of sex.” Reeves said the Biden administration’s inclusion of gender identity in definitions of sex-based discrimination exceeded the Department of Education’s authority and Title IX’s original text.
According to Reeves, the expanded definition of sex discrimination permeated the Biden rule to such an extent that the entire rewrite ought to be scrapped—even the parts that have nothing to do with trans students or gender identity.
“This court ruling turns longstanding legal precedent on its head in a direct, disproportionate attack on trans students.”
“When Title IX is viewed in its entirety, it is abundantly clear that discrimination on the basis of sex means discrimination on the basis of being a male or female,” Reeves wrote, siding with attorneys general from Tennessee, Kentucky, Ohio, West Virginia, Indiana, and Virginia. “Expanding the meaning of ‘on the basis of sex’ to include ‘gender identity’ turns Title IX on its head.”
The Biden rule’s gender-identity language relied on reasoning laid out in Bostock v. Clayton County, a 2020 US Supreme Court decision that expanded protections against sex discrimination in employment to cover gay and transgender workers. But the new Biden rules were “life-changing” for non-LGBTQ students as well, Brandon Wolf, spokesperson for the Human Rights Campaign, said last April, when the rules were finalized. For example, the updated regulations explicitly stated that pregnant and postpartum students were protected under Title IX, meaning they were entitled to lactation rooms on university campuses and academic accommodations throughout pregnancy. And the Biden rules undid many of the Trump provisions that had weakened protections for victims of sexual misconduct.
“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,” Biden’s secretary of education, Miguel Cardona, said last April. “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.” The rules were supposed to take effect nationwide last August.
At universities, the Trump rules required live hearings for sexual misconduct cases and allowed the admission of evidence about victims’ prior sexual history with the accused to “prove consent.”
But the Biden regulations were quickly challenged in court by multiple states and the Christian Educators Association International, represented by ultra-conservative legal firm the Alliance Defending Freedom, and never went into effect in more than half of the states. The plaintiffs argued that the rule was unconstitutionally vague, overly broad, and violated teachers’ freedom of speech by requiring them to use transgender students’ preferred names and pronouns. Reeves sided with the states. “The First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner,” he wrote, referring to sections of the new rule that define misgendering of students as harassment.
“We are thrilled that the judge saw these rules exactly for what they are: a contradiction of Title IX’s text and purpose,” David Schmus, executive director of Christian Educators, said in a news release. “Our members and other educators are free from any attempt by the federal government to use Title IX to force them to say things about sex and gender identity that aren’t true and that violate their deeply held convictions.”
In vacating the Biden regulations, Reeves reverted Title IX policy back to the rule promulgated in 2020 by Betsy DeVos, Trump’s education secretary during his first term.
Those Trump-era rules were sweeping. Most significantly, they changed the way schools handled sexual misconduct claims at every stage of an investigation, putting in place some rules that protected the rights of alleged attackers but numerous other rules that discouraged victims from coming forward. For example, the Trump regulations raised the evidentiary standard needed to prove sexual misconduct; they precluded schools from investigating incidents that occurred off campus or on study-abroad trips, even if the perpetrator was a school employee; and they narrowed the definition of sexual harassment. At universities, the Trump rules required live hearings for sexual misconduct cases—forcing victims to undergo cross-examination by the accused’s adviser—and allowed the admission of evidence about victims’ prior sexual history with the accused to “prove consent.”
Biden’s rules returned the evidentiary standard to prove misconduct to the pre-Trump threshold, required schools to investigate harassment that occurred off campus or online, and no longer required live hearings or live cross-examination.
Emma Grasso Levine, senior manager of Title IX policy and programs at the student- and survivor-led Know Your IX, called the Reeves ruling disappointing—and dangerous—for marginalized students, particularly survivors of sexual violence. “President Biden’s Title IX guidance defends survivors against retaliation,” Levine said in a news release. “With this ruling, the District Court imperils countless young people’s right to a safe, inclusive education.”
