The Attack on Title IX

Biden’s Proposed Title IX Rule Threatens Free Speech and Academic Freedom on Campus

The Biden Education Department (ED) has published a Notice of Proposed Rulemaking under Title IX of the Education Amendments of 1972.  President Biden’s radical Title IX rule will do the following:

  • Endanger women’s and girls’ sports
  • Undermine parental rights by requiring public elementary and secondary schools to affirm a child’s gender identity without the approval or knowledge of his or her parents
  • Erode due process in Title IX investigations and adjudications and return colleges and universities to the days of “kangaroo courts” and secret inquiries
  • Threaten free speech and academic freedom at institutions of higher education

DFI has prepared a list of additional resources below for members of the public who would like to learn more about the current Title IX rule, Biden’s proposed Title IX rule, summaries and comparisons of each rule, and other helpful materials. Right now, this is what you need to know:

Biden’s Proposed Title IX Rule Endangers Women’s and Girls’ Sports

Title IX has leveled the playing field for thousands of female athletes who wouldn’t have otherwise had the chance to compete in a school sport. Indeed, female participation at the high school level has grown 1,057 percent and at the college level by 614 percent. Unfortunately, after 50 years of progress, the Biden Education Department has placed this progress in jeopardy by illegally expanding the scope of Title IX and failing to provide express safeguards that protect athletics for women and girls attending schools, colleges, and universities.  

The Biden Education Department proposes to expand the scope of “discrimination on the basis of sex” in Title IX to include discrimination on the basis of “gender identity,” yet fails to include concise language making expressly clear that this new definition does not require an educational institution to allow biological males who identify as females to participate in women’s and girls’ sports. Beyond this concern, the proposed rule also fails to include express safeguards guaranteeing these athletic opportunities exclusively for women and girls based on biological sex.

As currently written, Biden’s proposed Title IX rule thus requires schools to permit biological males who identify as females to play in women’s and girls’ athletics. No protections preserve athletics for biological females. In fact, under the proposed rule, institutions must take “prompt and effective” to end such policies and protections because they would constitute “discrimination on the basis of . . . gender identity” under the scope of the new rule. If the proposed rule becomes final without additional changes, a biological man or boy who identifies as a woman or a girl will be able to compete against women or girls in sports like swimming, weightlifting, and running. These are fatal defects that deserve intense public scrutiny and comment.

Biden’s Proposed Title IX Rule Tramples Parental Rights in K-12

Any Title IX regulation must uphold the right of parents to know what is occurring in the classroom. Parents, not school officials, have the right to direct the education, healthcare, and treatment of their children and to teach their children about issues of sex and gender identity without interference from school districts.

But the Biden Education Department’s proposed Title IX rule undermines parental rights by requiring public elementary and secondary schools to affirm a child’s gender identity without the approval or knowledge of his or her parents.  Without notifying a student’s parents or obtaining their agreement, this requirement will allow school officials to provide counseling to one’s child about gender identity issues, to allow the child to choose his or her gender identity without regard to biological sex, and to refer a child for medical attention.

Biden’s Proposed Title IX Rule Erodes Due Process for the Accused and Protections for Survivors

A fair, legally binding framework for investigating and adjudicating sexual harassment and assault claims under Title IX protects everyone. That’s why the current Title IX regulations published in 2020 took historic action to define sexual harassment, including sexual assault, as unlawful sex discrimination and codified into law due process protections for the accused. The current Title IX regulations also for the first time imposed regulatory requirements on public elementary and secondary schools to investigate and adjudicate sexual harassment, including sexual assault, in our nation’s public schools.

But the Biden Education Department proposes a new Title IX rule that will send us back to the days when due process was thrown out the window, ‘Kangaroo Courts” became the norm on college campuses across the country, and survivors of sexual assault were forced repeatedly to relive their trauma. The proposed rule will allow the notorious “single investigator” model, where a single individual investigates, prosecutes, and adjudicates a sexual harassment claim and requires the use of a minimal standard of proof. Ignoring applicable court rulings, the Education Department also proposes to allow colleges and universities to dispense with hearings, as well as cross-examination by advisors.

Biden’s Proposed Title IX Rule Threatens Free Speech and Academic Freedom on Campus

Any regulation under Title IX must ensure that its grievance process is not used to punish people merely for exercising their right to free speech in an academic context, even when such speech is offensive or an opinion that someone does not wish to hear. That’s why the current 2020 Title IX regulations shield constitutionally protected speech and expressive conduct from Title IX enforcement unless a reasonable person would find it so severe, pervasive, and objectively offensive that it denies a person equal educational access.

But the Biden Education Department proposes a new Title IX rule that uses a definition of sexual harassment so broad and sweeping that it will require school officials to police the use of pronouns and return Title IX to the “bad old days” when it was twisted into a de facto campus speech code that canceled debate, shut down free speech, and severely eroded academic freedom.

Additional Resources

Current Title IX Regulations (2020)
Proposed Title IX Regulations (2022)
DFI’s Comparison of the 2020 Rule and the 2022 NPRM
DFI’s Oversight of the Biden Administration’s Rewrite of Title IX