U.S. President Joe Biden’s long-delayed Title IX rule was finally released last week, broadening protections for pregnant students and employees and for those who identify as LGBTQIA+. As a result, institutions will have to rush toward compliance with parts of the rule by Aug. 1.
“If you haven’t prepared, it’s going to be a disaster,” Colin Williams, chairman at New Era ADR, a technology company focused on dispute resolution, said in a prior University Business interview.
Title IX is, as higher ed leaders know, the U.S. federal civil rights law prohibiting sex-based discrimination in schools or other education programs that receive federal funding.
While the ruling ensures the codification of specific rights and designations for LGBTQIA+ and pregnant persons, it also broadens the set of circumstances that constitute sexual harassment, thus reversing many changes the Trump administration enacted. For example, it reinstates the single-investigator model, which places an individual in command of investigating and deciding on each violation. Previously, Title IX disputes had to follow a courtroom-type procedure that included live hearings in which defense attorneys cross-examine the alleged victims.
“The number of cases and complaints that schools are going to get is certainly going to expand,” said Scott Goldschmidt, partner at Thompson Coburn. “More people are going to come forward a lot more.”
The Biden administration’s work on the revisions is just the latest spoke in the wheel. Back in 2011, the Obama administration’s “Dear Colleague” letter in 2011 enshrined new protections against sex-based discrimination. The Trump administration soon overturned many of those measures in 2020.
“I think many people are hoping that in this regulatory package, we’d have some end to the churn and some certainty that this would be like the final regulations. That doesn’t seem to be the case,” says Goldschmidt. “The decisions [around due process] regarding the rule likely means that a future Republican administration will write their version.”
Criticisms against the Title IX ruling are already percolating. The Independent Women’s Forum, an organization focused on women’s policies, has decried the protections enshrined for LGBTQIA+ students, believing that they are a direct affront to women.
“The unlawful Omnibus Regulation reimagines Title IX to permit the invasion of women’s spaces and the reduction of women’s rights in the name of elevating protections for ‘gender identity,’ which is contrary to the text and purpose of Title IX,” May Mailman, director of Independent Women’s Law Center, said in a press release. “Because this is illegal, we plan to sue.”
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