Biden administration completes contentious Title IX rule restructuring sex definition

The Biden administration finalized its much-anticipated Title IX rules Friday morning, overturning much of the Trump-era rules and expanding the definition of sex to include claimed transgender identities.

The new rules only pertain to the sexual harassment and discrimination portions of Title IX, while an open rulemaking process is set to address issues with transgender participation in sports. The sports rules are not likely to be finalized until after the 2024 election.

Much of the redefinition of sex is fueled by the Supreme Court’s decision in Bostock v. Clayton County, where Justice Neil Gorsuch applied an expansive claimed gender identity framework to the definition of sex as it relates to employment discrimination under Title VII.

While Gorsuch wrote that Bostock would only narrowly apply to Title VII, President Joe Biden issued a day-one executive order requiring the entire federal government to apply its reasoning to everything it does. The final rule applies Bostock to Title IX.

“For over half a century, Title IX has opened doors, expanded access, and promised fairness. Before Title IX was passed in 1972, women and girls didn’t have equal access to education in this country,” Education Secretary Miguel Cardona said on a call with reporters Thursday evening. “That was unacceptable then, and it’s unfathomable now.”

“Title IX promises that no person experiences sex discrimination, including sex-based harassment, or sexual violence in federally funded education,” Cardona added.

However, many critics of the transgender movement, particularly their inclusion in female-specific facilities and sports, point out that girls are harmed when biological boys are allowed in their private spaces.

“The Department of Education has placed Title IX, and the decades of advancement and protections for women and girls that it has yielded, squarely on the chopping block. This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender,” Rep. Virginia Foxx (R-NC), chairwoman of the House Education and Workforce Committee, told the Washington Examiner in a statement. “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. Evidently, the acceptance of biological reality, and the faithful implementation of the law, are just pills too big for the Department to swallow — and it shows.”

A major focus of the Trump-era regulations that the Biden administration is now overhauling was laying out the due process rights of students accused of sexual harassment. According to a White House fact sheet, the Education Department kept several of those provisions, including the requirement that the accused is treated with a presumption of innocence and a provision allowing the accused to respond to allegations properly.

The new rules require schools to respond “promptly and effectively” to sex discrimination complaints with a transparent process for adjudication, according to the fact sheet. In postsecondary education, an appeal process is required.

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“The regulations support a fair and reliable grievance process in which the burden of proof is on the institution and responsibility determinations are only made after the conclusion of the recipient’s grievance procedures,” an Education Department spokesperson told the Washington Examiner. “The presumption of nonresponsibility is one component of that fair and reliable process and is being maintained from the 2020 amendments.”

Cases will be decided on a preponderance of the evidence standard, which is a lower burden of proof standard but permits the higher standard of clear and convincing if the school already employs that standard in comparable proceedings.