Department of Education rolls back protections for girls

The U.S. government enacted Title IX in 1972 to secure equal educational opportunities for American girls and women. Over 40 years later, Title IX policy has turned into a game of political pingpong as protections for women in education shift wildly depending on which political party holds the White House.

The Biden administration released a new interpretation of Title IX on Friday, nearly four years after the Trump administration issued the rule that is currently in place. But some say the new regulation, instead of safeguarding women’s rights, weakens or even removes them by redefining “sex” to include gender identity. Critics also raise concerns that the new provision dials back free speech and due process protections. Some groups are gearing up for legal fights over the measure while schools and officials determine how to respond in the meantime.

Bryan Schroll, general counsel for Cedarville University in Cedarville, Ohio, said that rewriting the school’s existing Title IX policy to meet a new rule will likely cost the school at least $20,000 in labor alone. He said primarily three people, with assistance from several others, will prepare a new version to replace the school’s current, 37-page policy. “Single-spaced,” Schroll said. “You don’t just pop that out.”

Between now and Aug. 1, when schools must be in compliance with the new measure, Cedarville officials will need to decide on the school’s new policy, write it, have attorneys review it, make changes, and get it approved by the board of trustees, which doesn’t plan to meet as a group until October. “Three months might sound like a lot of time,” Schroll said. “It’s actually not a lot of time for something this extensive.”

The new rule applies to all schools that receive even some federal funding unless they apply for and receive a religious exemption. Cedarville, a private Christian university with both Baptist and Presbyterian roots, has a Title IX religious exemption, Schroll said, but he quickly stressed the exemption’s limitations. “It’s not just a blanket exemption,” he said. “We’re exempt from provisions that conflict with our religious beliefs or doctrine.”

At least one major aspect of the change conflicts with the school’s beliefs: The administration added “gender identity” to sex discrimination protections. Cedarville’s Statement of Faith affirms its beliefs that “God created humans, male and female, in His image” and “human life, sexual identity and roles are aspects of God’s creative design.” The university’s workplace standards forbid employees from publicly advocating for or pursuing medical transgender treatment or other expression.

“Title IX was the crowning achievement of the women’s rights movement,” said Sarah Parshall Perry, senior legal fellow at the Heritage Foundation and a former senior counsel at the U.S. Department of Education. “And no one at that time, or even in the years since, believed that ‘sex’ meant ‘gender identity.’”

The change “effectively opens up every locker room, dorm room, bathroom, or housing accommodation to anyone who identifies as a woman, regardless of their underlying biology,” said Parshall Perry.

The regulation does not cover athletic eligibility for students who identify as the opposite sex. The Department of Education released a draft rule for transgender student-athletes in April 2023. As of last week, according to Higher Ed Dive, a final draft of that regulation had not been sent to the Office of Management and Budget, which would then have 90-120 days to review it.

But advocates say the general rule issued last week will affect athletics, despite department comments.

“The plain language of what they’ve issued here on Friday does affect women’s sports,” said Inez Stepman, senior policy analyst with the Independent Women’s Forum.

She pointed to a 2021 West Virginia law that protects women’s sports from male athletes’ participation. The family of an 11-year-old student who identifies as the opposite sex sued the state saying the law violated Title IX The Department of Justice submitted an amicus brief in the case in June 2021, supporting the student and labeling the state law a Title IX violation. “Where it matters, they’re operating as though these rules affect women’s sports,” Stepman said.

Last week, the 4th U.S. Circuit Court of Appeals found that the West Virginia law violated Title IX.

In 2020, Betsy DeVos, secretary of education under former President Donald Trump, released a Title IX rule that added due-process protections for college students accused of sexual misconduct. Under DeVos, colleges investigating sexual assault claims had to separate the tasks of investigating the accusation and deciding the outcome of the complaint. The measure also called on schools to allow for cross-examination of both parties but forbade schools from allowing the accuser and accused to question each other directly.

Criminal justice groups applauded the changes under DeVos, but some sexual assault survivor advocates quickly decried the move as traumatizing for victims. The rules announced last week largely revert to pre-DeVos procedures for sexual assault complaints at schools.

The new rule removes a requirement for live hearings and reverts to a model in which the investigator also determines the likelihood of guilt and makes discipline recommendations. “We do not commingle those roles in any other system, certainly not in the criminal justice system,” said Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression. “And that system is ripe for abuse and bias and error.”

The experts I spoke with also listed concerns about the new rule’s definition of harassment. Coward pointed to Supreme Court precedent in 1999 Davis v. Monroe County Board of Education that allowed for Title IX complaints against schools if student-on-student “harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

But in Friday’s regulations, the Biden administration defined harassment as being “so severe or pervasive” that it limits or denies a student’s participation in educational programs or activities. “There’s obviously a difference between ‘and’ and ‘or,’” Coward said.

At Cedarville, Schroll noted the same change. “It had to be something really bad, and it couldn’t have just been a one-time thing,” he said. “Who knows, almost anything now can fall under ‘severe or pervasive’ conduct.”

Under federal law, Congress can challenge an agency rule up to 60 days after it is released, but Parshall Perry said such a move likely wouldn’t make it through Congress and would be less likely to survive a presidential veto. “But I am really very full of hope about the prospect of a successful legal challenge,” she said.

The day the Department of Education released the rule, the Independent Women’s Forum and the Independent Women’s Law Center announced plans to sue the administration over the measure.

In Louisiana, state Superintendent of Education Cade Brumley told state schools in a letter Monday that the new regulation may be “in direct contradiction” with a state law that protects girls sports from participation by boys. “You can rest assured that [officials] have the full intent of this applying completely to athletics moving forward,” he told reporters. In the letter, Brumley told schools not to “alter policies or procedures at this time.”

Many schools, like Cedarville, are preparing for the Aug. 1 compliance deadline.

“Obama had a set, then Trump had a set, now Biden has a set, so it feels like every four years we’re changing,” Schroll said. “We’re going to spend a lot of time looking at the policy and looking at the regulations: What can we do? What are we not allowed to do? And it’s just going to be a learning process all over again, which is a heavy burden.”