The Biden administration is working on a final rule governing Title IX, the federal law banning sex-based discrimination in educational settings. The regulation will direct how colleges must investigate and potentially punish sexual violence.
Title IX has undergone a series of complex regulatory transformations over the last decade-plus. We’ve developed a timeline of the major events over the past 12 years, tracing the law back to when the Obama administration first sought to use Title IX to bolster efforts to prevent campus sexual misconduct.
12 years of Title IX policy
The Education Department under former President Barack Obama issues a “Dear Colleague” letter outlining educational institutions’ obligation to protect students from sexual harassment and sexual violence under Title IX. The guidance states that even a single episode of sexual misconduct could constitute a hostile educational environment and potentially trigger colleges’ Title IX obligations.
The 2011 guidance is widely considered to be a catalyst for increased national attention on campus sexual violence. It also became the subject of criticism from due process activists who argued the guidance put too much pressure on colleges to hold accused students responsible for sexual misconduct.
A Q&A document from the Education Department serves as a follow-up to the 2011 Dear Colleague Letter. It attempts to clarify the provisions of the 2011 guidance, including when the department considers an institution to have known about an episode of sexual misconduct, procedural requirements, and employees' duties to report sexual violence.
The Education and Justice departments publish guidance detailing how Title IX protects transgender students. The agencies tell institutions they must use students’ pronouns that match their gender identity, even if other documents indicate a different sex. The guidance also states that schools must allow transgender students to use locker rooms and other facilities that align with their gender identity.
The Senate narrowly confirms Education Secretary Betsy DeVos, appointed by then-President Donald Trump. Later that same month, the Education Department rescinds the guidance on transgender student protections under Title IX.
DeVos withdraws the Obama administration’s 2011 guidance and the 2014 follow-up Q&A. The move garners sharp criticism from Democratic lawmakers and advocates for sexual assault prevention, and accolades from civil liberties activists.
At the same time DeVos revokes the Obama-era guidelines, she issues interim guidance on how colleges must respond to sexual misconduct. This temporary guidance allows colleges flexibility on the evidentiary standard they use in evaluating sexual misconduct cases and also permits them to use informal resolutions, such as mediation, to resolve them.
The Education Department under DeVos releases its draft rule on Title IX. It contains contentious provisions, notably that colleges should hold a live hearing to adjudicate sexual misconduct cases. During those hearings, accused students and their accusers must be allowed to cross-examine each other through an adviser, the proposal states. The department invites public comment on the draft regulation.
Having reviewed more than 120,000 comments on the proposed rule, the department publishes the final iteration of the regulation. The vast majority of the comments opposed the rule, but it largely preserves the draft DeVos had proffered a year and a half prior.
DeVos’ rule takes effect. Higher education groups, led by the American Council on Education, had pleaded for the secretary to delay implementation of the rule in light of the coronavirus pandemic, a call DeVos did not heed.
President Joe Biden takes office. Immediately, he issues an executive order stating everyone should receive equal treatment under federal law, regardless of sexual orientation or gender identity. His order cites Title IX.
Biden signs an executive order that in part directs the Education Department to evaluate the Trump administration’s Title IX rule, which as a candidate he had pledged to undo.
The Biden administration formally announces it will replace the DeVos rule with its own regulation. The same month, the Education Department said it interpreted Title IX to protect students based on their sexual orientation and gender identity. The department’s decision was rooted in a 2020 Supreme Court ruling — Bostock v. Clayton County — that established those protections in federal employment law.
The Education Department announces it plans to release its proposed Title IX rule in April 2022, moving the date up from an initial publishing schedule of May. This displeases sexual assault prevention advocates, some of whom had called for a quicker timeline.
The department says it will delay the draft Title IX rule until May 2022, not April.
The Education Department pushes back the release of the proposed Title IX rule again, now targeting June 2022.
The Education Department on the 50th anniversary of Title IX being signed into law releases its regulatory proposal. It would greatly expand the breadth of Title IX reports colleges would be required to look into and would no longer force them to set up hearings to adjudicate those cases. Notably, it would also allow colleges to use the single-investigator model of evaluating Title IX cases, in which one official examines the facts of a report and then makes a decision.
The 60-day period for accepting public comments on the new draft regulation ends. The proposal draws more than 210,000 comments, which the Education Department will be required to sift through. Higher education associations largely praised the plan for the flexibility it would offer colleges, while critics said it would remove due process protections.
The Biden administration publishes its higher ed regulatory agenda, indicating it intends to issue a final Title IX rule in May 2023.
The Education Department proposes a separate Title IX regulation on transgender athletes’ participation in K-12 and college sports. The draft rule would prohibit blanket bans on transgender athletes. But it would allow for them to potentially be excluded from sports aligned with their gender identities if a school determines it needs a sex-based restriction in sports, such as to ensure fairness or to prevent injury.
The department pushes back the release of the finalized Title IX regulatory plans from May to October. It said it is still reviewing the hundreds of thousands of public comments that poured in on both proposals. The agency said it received more than 240,000 comments on the broader Title IX plan and over 150,000 for the athletics one.