The Department of Education advanced what critics have called the “most anti-woman regulation of all time” on Friday, sending the Title IX overhaul to the White House for final approval.
The long-awaited rule, which is expected to strip out due process protections added during the Trump administration and insert gender identity requirements, such as protections for cross-sex restroom use, is in the final stages of approval.
“This may well be the most anti-woman regulation of all time. It will be the end of women’s sports, sex-segregated restrooms, locker rooms, sororities, and dorms — all vanquished by an administrative state fiat that almost no one supports, which is why the Biden administration advanced it in the dark of night,” former Education Secretary Betsy DeVos, who oversaw Title IX reform during the Trump administration, told the Washington Examiner. “Every parent and child should be horrified this rule is moving forward.”
Originally proposed in 2022, President Joe Biden’s Education Department has been working to find ways to expand Title IX to include reforms such as allowing transgender athletes to play on sports teams and to use private spaces, including restrooms and locker rooms, that match their gender identities. The Education Department is also working on a separate rule aimed specifically at blocking the ability of governments and schools to bar males from competing in female sports.
The rule change advanced on Friday seeks to expand the jurisdiction of Title IX, curtailing many of the due process rights afforded to students accused of sexual misconduct under DeVos’s rule, which took effect in August 2020, as well as to extend the definition of protections under Title IX to include all claimed sexual orientations and gender identities.
DeVos said the Biden rule “returns us to the untenable days where there is no due process on campus and instead radical gender ideologues call all the shots,” adding that the judicial system has typically rejected the dynamic that would exist under the Biden administration’s framework.
“The rule is sexist, illegal, and unpopular, but appeasing the far-left flank is more important to the Biden administration than doing what’s right for students,” she said.
The new rule is expected to increase the difficulty of those accused of sexual harassment under Title IX to be treated fairly during the adjudication process because it replaces standards of objectivity installed under the Trump administration rule with a Pandora’s box of subjectivity that ran rampant under the Obama administration, Robert S. Eitel, the co-founder and president of the Defense of Freedom Institute, said to the Washington Examiner.
It does this in several ways, including by removing a legal standard for conduct that qualifies as sexual harassment in the current rule, pulled from caselaw, that it be “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” That would include, for example, quid pro quo-style harassment, such as a professor trading good grades for sexual favors.
In the Biden proposal, that standard is replaced with language that defines sexual harassment as “conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.”
According to Eitel, who served as senior counselor to DeVos from 2017 to 2020, that change is critical because it can open the opportunity for a student to file a sexual harassment complaint against someone for any comment deemed offensive.
For example, if a male student in an English class were describing a perception of the male-female relationship as part of an academic discussion, but his comment offended his classmates, the male student could find himself the subject of a sexual harassment investigation under Title IX, as was the case during the Obama years.
But the final rule is expected to insert ambiguous language elsewhere, in part by including in the definition of sexual harassment “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
The Department of Education, however, did not define sexual orientation, gender identity, sex stereotypes, and sex characteristics, potentially opening up civil rights carveouts for activities and sexual conduct that may be illegal for the government to protect, according to DFI’s public comment on the rule.
The Biden administration also seeks to expand the jurisdiction of Title IX to include students’ off-campus activities as well, Eitel said. While the Trump-era rule covered Title IX protections for students off campus on, for example, travel for sports, the Biden rule would follow a student into town, off-campus, and into a restaurant. That could allow for even non-students to circumvent many due process rights and file harassment complaints — not necessarily for rape or sexual assault, but potentially for comments deemed offensive based on an already-expansive definition provided under the new rule.
Title IX coordinators are expected to receive expansive authority under the new rule, creating a role DFI referred to as a “Campus Commisar” in its public comment, adding the coordinators will have “the obligation and unchecked authority to unceasingly monitor and prevent any activities or potentially offensive speech that he or she deems to be incompatible with the Department’s newly enacted prohibitions.”
That could include a coordinator initiating a Title IX inquiry on students without the consent of the theoretically aggrieved party.
The rule now sits at the Office of Information and Regulatory Affairs in the Office of Management and Budget, where White House officials and affected agencies will submit comments behind closed doors.
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OIRA is tasked with reconciling potential problems until it ultimately submits the final rule to Attorney General Merrick Garland, who is required by law to sign off on the changes personally. OIRA has 90 days to publish the rule to the public, but that time frame can be extended in certain circumstances.
In a statement, an Education Department spokesperson said the rule was meant to expand protections for students.
“The Biden-Harris Administration is committed to ensuring all students are guaranteed an educational environment free from discrimination on the basis of sex. The Department of Education has taken the next step to advance a rule, first proposed in 2022, that strengthens protections for students from sexual harassment and for LGBTQI+ students,” the spokesperson said. “The Department is still reviewing a second rule related to athletics, which was first proposed nine months after the first rule, and which received 150,000 public comments which by law must be carefully considered.”
