The information below was drawn from an advisory by State Policy Network, of which the RI Center of Prosperity is a proud member.

In April of 2024 the Biden administration’s Department of Education officially implemented its finalized Title IX regulation. The new rule addresses sex-based discrimination in educational programs and activities receiving federal financial assistance. This impacts K –12 and higher education institutions across the nation.

Regardless of one’s personal beliefs about this issue, this directly impacts federalism and sets the stage for litigation and federal enforcement actions against local schools and universities.

What is Title IX?

Title IX is a federal civil rights law in the United States that was passed as part of the Education Amendments of 1972. It states:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Originally, Title IX was primarily associated with gender equity in sports programs at educational institutions receiving federal funds, ensuring that female students had equal opportunities to participate in athletics. However, its scope has expanded over the years to encompass broader issues related to gender-based discrimination and harassment in educational settings, including sexual harassment, sexual assault, and gender-based violence.

Previous Administration’s Title IX Regulations

The Obama administration’s Department of Education and Department of Justice issued a joint guidance letter laying out how education institutions receiving federal funds should update their Title IX practices to provide a “safe and nondiscriminatory environment” for transgender students. This included allowing students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity.

Eleven states sued the administration and eventually the Trump administration rescinded the guidance. The Department of Education promulgated a new regulation that addressed due process in high education including defining sexual harassment and requiring schools to conduct public hearings for these cases, along with allowing those who were accused of sexual harassment or assault to cross-examine their accusers.

The Biden Era Regulation

The new rule that replaces the Trump-era Title IX regulation is over 1,500 pages long and took nearly two years to finalize with close to a quarter million comments submitted. The regulation codifies 2021 Department of Education guidance that redefined “sex” in Title IX to include “gender identify” and replaces Trump era policies.

Some of the changes include:

• Makes sex-based separations at schools a violation of Title IX’s nondiscrimination rule if it causes more than a “de minimis” (very minor) harm on the protected individual.
• Changes the definition of “sexual harassment” to clarify that sex-based harassment is a form of sex discrimination and includes sex-based stereotypes and gender identity.
• Redefines the geographical scope of Title IX to cover incidents that happen outside of school grounds, including on-line.
• Adds new pregnancy and breastfeeding support requirements and protections.
• Changes how colleges are to handle sexual assault allegations, potentially weakening due process.

What it does not do:

• Address how sexual identity factors into participation in athletics. The Department of Education released a separate Notice of Proposed Rulemaking on Sex-Related Eligibility Criteria for Male and Female Athletic Teams. Given the controversial nature of the proposed regulation, the final rule is expected to be released after the November election.
• Weaken parental notification requirements for schools to inform parents if their children have requested to be addressed by a different pronoun or name. At least seven states (Alabama, Arizona, Arkansas, Idaho, Indiana and North Carolina) have parental notification laws that require schools to send parents a notification.

Impact to States

Since states are the primary policymakers for K-12 education systems, the changes tied to Title IX federal funds contradict policies in certain states, such as:

• Several states, including Florida, Kentucky, Montana, and North Dakota, passed laws that protect teachers and students that don’t use “gender ideology” pronouns for other students from discipline. The regulation’s definition of “sexual harassment” to include incidents related to gender ideology will run afoul of the new Department of Education policies.
• At least 11 states passed laws that require bathroom, locker-rooms, and other sex-segregated facilities to have access based on biological sex.

Republican states are already taking action, with many advising schools to not comply while state officials analyze the regulation and determine their course of action:

• Florida – Letter from Manny Diaz, Jr., Commissioner of Education
• South Carolina – Letter from Ellen Weaver, State Superintendent of Education
• Oklahoma – Letter from Ryan Walters, State Superintendent of Public Instruction
• Louisiana – Letter from Cade Brumley, State Superintendent of Education
• Texas – Letter from Governor Greg Abbot to President Joe Biden

What’s Next?

The rule goes into effect August 1, 2024, but given the controversial nature of this issue, a significant amount of litigation is expected. Already two groups of states (Alabama, Florida, Georgia, South Carolina and Louisiana, Mississippi, Montana, Idaho) have filed lawsuits against the Biden administration. Groups supporting these changes are also expected to file lawsuits or raise enforcement complaints to the federal government against schools that do not comply.

The Congressionally authorized purpose of Title IX was to protect women in educational and academic environments, as well as athletically. The impact of the actions of unelected federal Department of Education staff not only changes a law passed over fifty years ago, but also erodes the rights of those it is intended to protect.

This latest example of federal overreach is an opportunity for the network of state think tanks to remind elected state and local officials about the dangers of accepting federal money with ever-shifting strings. SPN has resources to help groups amplify this message and champion legislation that puts states and local governments back in the decision-making role.