Biden administration adds Title IX protections for LGBTQ students, assault victims

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"Our nation's educational institutions should be places where we not only accept differences, but celebrate them," U.S. Education Secretary Miguel Cardona, seen in the East Room of the White House in August 2023, said of the new Title IX regulation. / AFP via Getty Images

The Biden administration released rules Friday that protect the rights of LGBTQ students and change the way schools can respond to allegations of sexual assault and misconduct. It's a long-awaited answer to campaign promises made by President Biden to reverse Trump-era regulations he said were silencing survivors.

The Education Department's updates to Title IX, the 1972 law prohibiting sex discrimination in federally funded school programs, are expected to go into effect Aug. 1.

Under the new rules, in-person, court-like proceedings for allegations of sexual assault — including cross-examination of alleged victims — are no longer required. That rolls back Trump administration protections for accused students that victims' advocates say retraumatized survivors and discouraged reporting. Schools will now have the flexibility to question witnesses in live hearings or in separate meetings. If a school chooses to hold a live hearing, alleged victims have the right to attend remotely.

The Biden administration also broadened the definition of what counts as sexual harassment, so more cases might qualify as serious enough to require a school investigation. That reverses Trump-era regulations that had narrowed harassment to what is "objectively offensive."

"Our nation's educational institutions should be places where we not only accept differences, but celebrate them. Places that root out hate and promote inclusion, not just because it's the right thing to do, but because our systems and institutions are richer for it," Education Secretary Miguel Cardona said on a call with reporters Thursday.

Perhaps most contentious, the new rules also officially broaden the interpretation of Title IX to cover pregnant, gay and transgender students.

"Title IX requires more, and these final regulations provide it," said Catherine Lhamon, Education Department assistant secretary for civil rights, who also served in the same position in the Obama administration.

Under the new interpretation, it could be a violation of Title IX if schools, for example, refuse to use the pronouns that correspond with a student's gender identity.

Republican Rep. Virginia Foxx, chairwoman of the House Committee on Education and the Workforce, blasted the updated regulation, saying "it dumps kerosene on the already raging fire that is Democrats' contemptuous culture war that aims to racially redefine sex and gender."

The Biden administration's changes avoid the controversial question of whether schools can ban transgender athletes from competing on women's and girls' teams. Officials have proposed a separate rule on that issue, which they say is still in the works, but offered no timeline.

The new regulations drew predictably mixed reviews.

"After years of pressure from students and survivors of sexual violence, the Biden administration's Title IX update will make schools safer and more accessible for young people, many of whom experienced irreparable harm while they fought for protection and support," Emma Grasso Levine, a senior manager at the advocacy group Know Your IX, said in a statement to NPR.

But critics say the changes violate due process rights for accused students.

"The Department of Education should recognize that removing procedural protections for students is the exact opposite of fairness," Will Creeley, legal director at FIRE, the Foundation for Individual Rights and Expression, said on social media. "And by expanding the definition of sexual harassment, the new regulations threaten expressive rights."