Education Department unveils Title IX rule boosting protections for transgender students

Education Secretary Miguel Cardona on Thursday unveiled his plan to codify safeguards for transgender students and overhaul the Trump-era version of the rule that mandates how schools must respond to sexual misconduct complaints.

The proposal would ban “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.”

However, it is still unclear how the rule would apply to athletics, a key point of contention as several conservative states across the country have moved to ban transgender students from women's and girls’ sports. “The department will engage in a separate rulemaking to address Title IX’s application to athletics,” the agency said in a fact sheet.

“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” Cardona said on a press call Thursday morning. “So we decided to do a separate rulemaking on how schools may determine eligibility while upholding Title IX’s nondiscrimination guarantee.

While the department did not give any indication on when the rule on sports might be expected, Cardona said, “I firmly reject efforts to politicize these protections and sow division in our schools.”

The long-awaited Biden administration proposal lands the same day Title IX, the federal education law that prohibits sex-based discrimination, turns 50. It unravels much of former Education Secretary Betsy DeVos’ Title IX rule, a defining aspect of her tenure. Her rule, which took effect in August 2020, narrowed the definition of sexual harassment and directed schools to conduct live hearings with cross-examination for sexual misconduct investigations.

Cardona’s rule no longer requires live hearings for Title IX investigations and reverts the definition of sexual harassment back to “unwelcome sex-based conduct that creates a hostile environment by denying or limiting” a person’s ability to participate in a school’s education program or activity. The DeVos rule currently only prohibits unwelcome sex-based misconduct if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

While the DeVos rule on sexual misconduct was hotly contested, Cardona’s attention to transgender rights is likely to face some blowback. Cardona’s rule won’t take effect for several months, until the regulatory process runs its course.

The department’s proposed Title IX rule will be open for public comment for 60 days from the date of publication in the Federal Register.

This story will be updated.