As the Biden administration assumes office, students across the country wait in anticipation to see how the administration will reform Title IX.
Title IX of the Education Amendments Act of 1972 mandates that schools protect their students from discrimination on the basis of sex. Among its many influential changes, it empowered student survivors of sexual violence and transgender students with the legal processes for recourse, propagating a safe and inclusive environment.
It is time is for the Biden administration to reinstate Obama-era Title IX policies protecting student survivors and transgender students, rescind Trump-era policies that hollow Title IX of its capacity to protect students and update Title IX to include greater protections for LGBTQ+ students.
Restoring the Obama administration’s policy would increase protections for student survivors of sexual assault and harassment.
Guidance from the Obama administration increased the likelihood of survivors finding protection through Title IX processes. Notably, the Obama administration released guidance instructing schools to use a lower standard of evidence in Title IX cases in 2011.
In 2020, the Trump administration narrowed Title IX protections with the stroke of a pen.
Former Secretary of Education Betsy DeVos redefined sexual harassment as “unwelcome conduct on the basis of sex that is severe, pervasive and objectively offensive.” Students facing sexual harassment can only have a Title IX office consider their complaint if these acts are also repetitive. According to the DeVos policies, one egregious act of harassment is not enough to demand justice.
DeVos’ guidance also requires survivors entering into Title IX processes to defend the details of their harassment in live hearings while being cross-examined, a process that is often traumatizing. Additionally, schools are now allowed to use the “clear and convincing” evidentiary standard, severely increasing the burden of proof on survivors.
Currently, institutions that want to protect students undergoing Title IX processes often lack the freedom to do so.
“There are pieces from that prior guidance that were really valuable and important,” Emily Springston, IU director of institutional equity and Title IX, said. “The current rule is very prescriptive. It boxes us in and has created some confusion.”
The Biden administration must also reinstate Title IX guidance codifying protections for transgender students.
The Obama-era “Dear Colleagues Letter” explicitly prohibited discrimination based on one’s gender identity, extending the meaning of the term “sex” within the act.
“This guidance further clarifies what we’ve said repeatedly — that gender identity is protected under Title IX,” former U.S. Secretary of Education John B. King Jr. stated in the letter.
To the dismay of transgender students, the unofficial policy guidelines presented in the Obama administration’s letter were immediately rescinded when the Trump administration assumed office in 2017, diminishing Title IX protections established for survivors and LGBTQ+ persons.
A multitude of cases hold that Title IX extends to the protection of discrimination based on gender identity. Turning to the previous definitions in the “Dear Colleague Letter” for guidance, Grimm v. Gloucester County in 2018 held that Gloucester County School’s discriminatory bathroom policy of mandating transgender students to use an “alternative private” restroom is in direct violation of protections under Title IX.
“It ended in a favorable result in over 10 cases for transgender students, and then there have been another four cases where, [with] cisgender students, it did not end in a favorable result for them,” Suzanne Eckes, an IU educational leadership and policy studies professor, said. “So really, in the K-12 arena, maybe we are seeing a trend.”
The trend is exemplified by Doe v. Boyertown Area School District and Parents for Privacy v. Dallas School District, two cases where cisgender students sued against policies allowing transgender students to use bathrooms and locker rooms on the basis of the right to privacy. The Supreme Court refused to take action regarding both cases.
Title IX policies should also be updated to clarify protections on the basis of sexual orientation.
Eckes said she would like to see the Biden administration adopt the Obama-era policies.
“I think that they should pretty much adopt what the Obama administration already put out with regard to how Title IX is interpreted, and then I would update it to include — I would cite Bostock,” Eckes said.
A Supreme Court case decided last summer, Bostock v. Clayton County, extended protections under Title VII of the Civil Rights Act of 1964, concluding that the prohibition of sex discrimination regarding employment extends to protections against discrimination based on sexual orientation and gender identity.
The Biden administration should take this new definition of “sex” into account, clarifying that Title IX includes protections for LGBTQ+ students.
“We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence,” King Jr states.
Survivors and transgender students are not protected well enough in our schools. The Biden administration must act swiftly to ensure students can exist safely in educational spaces.
CORRECTION: A previous version of this article incorrectly identified how Title IX defines sexual violence.
Maddie Butler (she/her) is a sophomore studying International Law and Institutions and Arabic. She is the Director-General of Indiana Model United Nations.
Russ Hensley (he/him) is a sophomore at Indiana University studying mathematics, international law and institutions and Chinese. He is a member of IUSG on the Diversity, Equity and Inclusion committee and a curator for TEDxIU. He aspires to work in gender and sexuality law.