Biden Admin’s Anti-Sex Discrimination Rule Redefines Sex to Include Gender Identity

The Biden administration finalized its rule overhauling Title IX on Friday, leaving schools and colleges across the country a few months to update their policies on how to handle sex discrimination complaints based on a new, broadened definition of sex.

Title IX is the federal law that prohibits sex discrimination—including sexual harassment and sexual violence—in any educational programs or activities that receive federal funding. Among other changes, the new rule defines sexual harassment as including harassment based on sex stereotypes, sex characteristics, pregnancy, sexual orientation, and gender identity.

This redefinition of sex, the U.S. Department of Education said, is meant to align with the reasoning of the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, where a child welfare worker was allegedly fired after his employer learned he was gay.

In the 6-3 decision, the high court offered an expansive interpretation of Title VII, the federal law prohibiting workplace sex discrimination, concluding that it is unconstitutional for sexual orientation and gender identity to be considered as factors in employment decisions.

Although Justice Neil Gorsuch wrote in the majority opinion that Bostock would only narrowly apply to Title VII, President Joe Biden issued a sweeping executive order on his first day in office, directing all federal agencies to apply the Bostock framework to all their operations—including Title IX enforcement.

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Friday’s rule does not address transgender participation in school and college sports, which is the subject of an ongoing rulemaking process. The sports rules are unlikely to be finalized until after this year’s general election.

The change was met with pushback from lawmakers in favor of preserving female-only spaces. Rep. Virginia Foxx (R-N.C.), who chairs the House education committee, argued that the new rule itself defeats the purpose of Title IX by mandating open access based on the concept of gender identity.

“The Department of Education has placed Title IX, and the decades of advancement and protections for women and girls that it has yielded, squarely on the chopping block,” the congresswoman said in a statement. “This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender.”

Trump-Era Rule Rescinded

The new regulation replaces the one issued by the Trump administration in May 2020, which narrowed the scope of Title IX complaints that schools have to investigate and provided accused individuals with more due process protections.

Under the Trump-era rule, when schools investigated Title IX complaints, they were prohibited from using what is called the single-investigator model, in which one person examines the facts of a case and makes a decision on its outcome. Instead, the rule mandated that they  use three separate officials per complaint. It also ensured that alleged perpetrators and victims had the equal right to submit, cross-examine, and challenge all evidence at a live hearing, at which they could choose to be represented by a lawyer or adviser to avoid face-to-face questioning.

However, the Biden administration, which said its new rule will help make sure that procedures to investigate and resolve Title IX complaints are “accurate and fair to all involved,” will allow schools to use the single-investigator model again and will make cross-examination optional.

In another significant departure from the Trump-era, the new rule mandates that schools use the “preponderance of the evidence”—the lowest standard of proof when evaluating the parties’ evidence. The 2020 rule allowed schools to use either the preponderance of the evidence standard or the higher “clear and convincing” standard, which is more typical of criminal cases in the legal system.

Schools will have until Aug. 1 to revise their policies to ensure compliance.

The Foundation for Individual Rights and Expression (FIRE), a civil liberties advocacy group that cheered the 2020 rule, warned that the new rule would make college students “less likely to receive justice” if they find themselves in a Title IX proceeding.

“When administrators investigate the most serious kinds of campus misconduct, colleges should use the time-tested tools that make finding the truth more likely. But the new regulations no longer require them to do so,” the organization said in a statement.

“And by expanding the definition of sexual harassment, the new regulations threaten expressive rights,” it added.

Expanded Protections for Pregnant Women

The Biden Title IX rule also enshrined protections for students and employees who are pregnant or parenting, which have gained bipartisan popularity in Congress.

“No one should have to give up their dreams of attending or finishing school because they’re pregnant,” U.S. Secretary of Education Miguel Cardona said in a press call on Thursday.

Specifically, the final rule mandates that schools provide “reasonable accommodations” for students and employees with pregnancy, childbirth, abortion, or related medical conditions, including allowing breastfeeding breaks for employees and granting access to clean, private lactation spaces for both students and employees.

Noting that about one-third of all abortions in the United States are performed on college-age women between 20 and 24, the proposed law also seeks to make specific accommodations under Title IX rights, such as allowing pregnant women to miss class for prenatal checkups and ensuring the continuation of scholarships for those who need to take time off for childbirth.

“This bill operates on the assumption that pregnant women, especially those facing the daunting uncertainty of an unexpected college pregnancy, should know all options available to them to help carry the baby to term,” Ms. Foxx said in January.