“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” Cardona said on a press call Thursday morning. “So we decided to do a separate rulemaking on how schools may determine eligibility while upholding Title IX’s nondiscrimination guarantee.
While the department did not give any indication on when the rule on sports might be expected, Cardona said, “I firmly reject efforts to politicize these protections and sow division in our schools.”
The long-awaited Biden administration proposal lands the same day Title IX, the federal education law that prohibits sex-based discrimination, turns 50. It unravels much of former Education Secretary Betsy DeVos’ Title IX rule, a defining aspect of her tenure. Her rule, which took effect in August 2020, narrowed the definition of sexual harassment and directed schools to conduct live hearings with cross-examination for sexual misconduct investigations.
Cardona’s rule no longer requires live hearings for Title IX investigations and reverts the definition of sexual harassment back to “unwelcome sex-based conduct that creates a hostile environment by denying or limiting” a person’s ability to participate in a school’s education program or activity. The DeVos rule currently only prohibits unwelcome sex-based misconduct if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
While the DeVos rule on sexual misconduct was hotly contested, Cardona’s attention to transgender rights is likely to face some blowback. Cardona’s rule won’t take effect for several months, until the regulatory process runs its course.
The department’s proposed Title IX rule will be open for public comment for 60 days from the date of publication in the Federal Register.
Protections for vulnerable students
Along with codifying protections for transgender students for the first time, the Education Department’s proposal clarifies that schools must protect parenting and pregnant students and employees from discrimination. This means schools must have “reasonable modifications for students, reasonable break time for employees for lactation and lactation space for both students and employees.”
If a student is pregnant, the school must offer them information on how to contact the Title IX coordinator for help. Then, the coordinator would have to ensure the student receives modifications to help them go to school. Students would also be allowed to take a voluntary leave of absence for medical reasons and must be reinstated upon return.
Under the new rule, schools that receive federal funds may be expected to protect transgender students from discrimination by allowing them to use bathrooms that match their gender identity and be addressed by their pronouns. Despite sports not being included in the proposal, the administration’s focus on protecting transgender students is still likely to take heat. And the rule lays the groundwork for future rulemaking related to sports.
“Preventing any person from participating in an education program or activity consistent with their gender identity would subject them to more than de minimis harm on the basis of sex and therefore be prohibited, unless otherwise permitted by Title IX or the regulations,” the rule states.
However, depending on the outcome of the midterms, the longer it takes the Education Department to finalize Cardona’s Title IX rule and issue direction on transgender students’ access to sports, the more time a potential GOP majority in Congress would have to use the Congressional Review Act. The CRA gives lawmakers 60 legislative days to overturn major rules once they’re issued by federal agencies.
Transgender women have been allowed to compete in women’s sports in the Olympics since 2003. The NCAA recently updated its policy on the…
Read More: Education Department unveils Title IX rule boosting protections for transgender students