The Biden administration on Thursday proposed sweeping changes to Title IX on the anti-discrimination law’s 50th anniversary, seeking to fold gender identity into the definition of sex and roll back Trump-era due process protections in campus assault cases.
The proposed changes unveiled by Education Secretary Miguel Cardona would add “sexual orientation, gender identity and sex characteristics” to the 1972 law prohibiting discrimination in education based on sex.
“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,” Mr. Cardona said in his remarks.
He acknowledged the heated debate over male-to-female transgender athletes. He said the department “recognizes that standards for students participating on male and female athletic teams are evolving in real time.”
“That’s why we’ve decided to do a separate rule-making on how schools may determine eligibility while upholding Title IX’s nondiscrimination guarantee,” Mr. Cardona said.
The proposed rule takes aim at the 2020 campus sexual assault overhaul spearheaded by Trump administration Education Secretary Betsy DeVos increasing protections for student defendants, such as requiring schools to declare whether they are using the “preponderance of the evidence” or “clear and convincing evidence” standard.
“The proposed amendments will restore crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination — a critical safety net for survivors that was weakened under previous regulations,” the Education Department said.
The administration’s proposal was unveiled amid a host of events marking the Title IX milestone.
The Independent Women’s Forum hosted an “Our Bodies, Our Sports” rally featuring more than a dozen current and former women athletes speaking out against male-to-female transgender competitors in female sports.
They included former University of Kentucky swimmer Riley Gaines, who tied with Lia Thomas for fifth place in the 200-yard freestyle at the NCAA Division I women’s championships in March.
Two days earlier, Thomas became the first male-born athlete to win a Division I women’s title by taking first in the 500 freestyle. Thomas had undergone at least a year of testosterone suppression as required under NCAA rules.
“If change is not made, it’s only the beginning of a slippery slope,” said Gaines. “It’s only a matter of time until one transgender athlete winning a national title in a woman’s sports turns into three, and then 10, and so on. Allowing male athletes to switch teams when they feel necessary is not only an infringement on female athletes, but also a mockery of Title IX.”
The widely anticipated rule-making drew immediate pushback from conservatives and others alarmed about the prospect of male-born students in women’s scholastic athletics, categories and public accommodations.
“On this 50th anniversary of Title IX, when we are proud to celebrate the accomplishment of millions of women across the country, the Biden administration outrageously offers new regulations that would redefine sex, equating gender identity with biological reality,” said Penny Nance, president and CEO of Concerned Women for America. “What a slap in the face women who have achieved so much. Biden has just erased you.”
Nicole Neily, president of Parents Defending Education, said “families should be deeply concerned about the proposed rewrite of Title IX.”
“From rolling back due process protections to stomping on the First Amendment to adding ‘sexual orientation and gender identity’ into a statute that can only be so changed by congressional action, the Biden administration has shown that they place the demands of a small group of political activists above the concerns of millions of families across the country,” she said.
If approved, the proposed regulations could set up a challenge to the 18 states that have banned biological males who identify as female from female scholastic athletics.
The administration’s push was aided by Senate Democrats, who blocked a bill to protect single-sex sports from transgender athletes. They rejected warnings from Republicans that the Biden administration’s proposed Title IX overhaul would sideline female athletes.
Sen. Mazie K. Hirono, Hawaii Democrat, shut down a motion by Sen. Tommy Tuberville, Alabama Republican, to discharge from a committee the Protection of Women and Girls in Sports Act, which would cut off federal funds for programs that allow males to participate in sports designed for females.
“My Republican colleagues falsely claim that allowing transgender women and girls to play sports is harmful to cisgender women and girls,” Ms. Hirono said on the Senate floor.
“They continue to hurl insulting lies about transgender girls dominating sports. But what is true is that these bans are deeply harmful to transgender girls, particularly to transgender girls of color, girls who are gender nonconforming or born with intersex traits, as well as cisgender girls,” she said.
Mr. Tuberville, a former football coach at Auburn University and the bill’s sponsor, said he was “disappointed that my colleague won’t stand up for women and women’s rights.”
He made the largely symbolic effort after hosting a press conference to commemorate the 50th anniversary of Title IX and push back on the Education Department’s proposed overhaul.
Outside the Capitol, the Independent Women’s Forum hosted an “Our Bodies, Our Sports” rally at Freedom Plaza featuring more than a dozen current and former female athletes speaking out against male-to-female transgender competitors in female sports.
They included former University of Kentucky swimmer Riley Gaines Barker, who tied with Lia Thomas for fifth place in the 200-yard freestyle at the NCAA Division I women’s championships in March.
Two days earlier, Ms. Thomas became the first male-born athlete to win a Division I women’s title by taking first in the 500 freestyle. Ms. Thomas had undergone at least a year of testosterone suppression as required under NCAA rules after a solid but unspectacular career on the Penn men’s team.
“If change is not made, it’s only the beginning of a slippery slope,” said Mrs. Barker. “It’s only a matter of time until one transgender athlete winning a national title in a woman’s sports turns into three, and then 10, and so on. Allowing male athletes to switch teams when they feel necessary is not only an infringement on female athletes but also a mockery of Title IX.”
Cheering the Biden administration were LGBTQ advocates such as the National Center for Lesbian Rights, which called the proposed changes “the most robust protections ever against discrimination on the basis of sexual orientation or gender identity.”
“NCLR applauds the administration’s proposal to update Title IX regulations to include historic protections for LGBTQ students,” said Executive Director Imani Rupert-Gordon. “Since his election, [the] president has been uncompromising in his commitment to do everything in his power to protect LGBTQ Americans from discrimination in every facet of their lives — including education.”
The Human Rights Campaign called the proposed changes “a significant and welcome step in ensuring all students have a place to learn free from sexual harassment, assault and discrimination.”
On the other side was American Principles Project President Terry Schilling, who warned that the proposed rules threaten the “free speech rights of teachers, who could be forced to use all manner of absurd pronouns or else risk being accused of harassment and discrimination.”
Alliance Defending Freedom said the department “interprets Title IX of the Civil Rights Act in a manner inconsistent with the plain meaning of that law to illegitimately inject it with the administration’s political preferences, thereby disregarding a wide range of constitutionally protected freedoms.”
The department cited the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII protects transgender employees against discrimination, an opinion that critics have accused the administration of misapplying to Title IX.
Mr. Cardona called the proposed changes “personal to me, as an educator and a father.”
“I want the same opportunities afforded to my daughter, and my son, and my transgender cousin, so they can achieve their potential and reach their dreams,” he said.
The proposed regulations will be open for public comment for 60 days after being published in the Federal Register.