Corrected: This story has been updated to correct the spelling of Elizabeth Tang’s last name and the state where Clayton County is located.
After a long wait, the Biden administration has officially made its mark on Title IX, the landmark federal law prohibiting sex discrimination in schools, with a revision to the law’s regulations finalized earlier this spring.
However President Joe Biden isn’t the first president to rewrite regulations implementing the historic law or change how it’s enforced. For the past three presidential administrations, Title IX has been an easy place for presidents to flex their political muscle on education and make value statements about the rights of women and LGBTQ+ people in educational settings.
In the Biden administration’s case, the latest revision strengthens the rights of LGBTQ+ students and staff. The revised rule explicitly states that schools cannot discriminate against students based on sexuality or gender identity.
Before releasing the revised regulation, the U.S. Department of Education already interpreted Title IX to prohibit discrimination based on sexuality and gender identity, based on a 2020 Supreme Court ruling in Bostock v. Clayton County, Ga., that found that federal employment law prohibits discrimination based on gender identity and sexuality. However, the new rule makes that explicit under Title IX without room for interpretation.
“Since day one the Biden-Harris administration has been committed to ensuring Title IX works for all students,” Education Secretary Miguel Cardona said in an April 18 news conference about the new rule. “These regulations make crystal clear that everyone can access schools that are safe, welcoming, and that respect their rights.”
The change has set off a flurry of lawsuits against the Education Department from at least 26 Republican-led states, conservative advocacy organizations, and some school districts that argue, among other points, that the rule violates women’s rights. By allowing nonbinary and transgender people to benefit from Title IX protections, the lawsuits, argue the department is stripping away protections from cisgender women. In addition to the lawsuits, some Republican-led states have instructed school districts not to adhere to the revised regulation.
On June 13, a federal judge in Louisiana issued an order to temporarily block the rule from going into effect in Idaho, Louisiana, Mississippi, and Montana. In the order, the judge said the revised rule is “an attempt to circumvent Congress and make major changes to the text, structure, and purpose of Title IX.” The order came just a few days after another judge in Texas threw out the Biden administration’s 2021 guidance that schools should interpret Title IX to protect students from discrimination based on gender identity.
The debate over the law and how it applies to schools will likely only be amplified in the coming months as the department prepares to release another Title IX rule revision that would prohibit schools from banning all transgender students from joining school athletic teams that align with their gender identity. If finalized as proposed, that revision would directly challenge at least 25 state laws or regulations banning transgender athletes from teams consistent with their gender identity.
Regardless of what happens, educators can bet on changes to Title IX. Read on for more on the background of Title IX, misconceptions about the law, its day-to-day application in schools, and how it’s enforced.
What is Title IX?
Rep. Patsy Mink, D-Hawaii, was the major sponsor and author of Title IX of the Education Amendments of 1972, which Congress passed and President Richard Nixon signed into law that year. Following her death in 2002, the law was renamed the Patsy T. Mink Equal Opportunity in Education Act.
The law states that “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.”
It was the first law to enshrine protections against sex discrimination in schools and forced many schools to establish equal opportunities for both girls and boys in sports and other educational programs.
The law states that “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.”
It was the first law to enshrine protections against sex discrimination in schools and forced many schools to establish equal opportunities for both girls and boys in sports and other educational programs.
How does Title IX apply to K-12 schools?
A common misconception about Title IX is that it only applies to colleges and universities, said Elizabeth Tang, senior counsel for education and workforce at the National Women’s Law Center, a nonprofit that advocates for equal rights for women and LGBTQ+ people.
In actuality, the law applies to any entity that receives federal funding and operates an educational program, including K-12 schools, museums, libraries, and prison education programs.
“That includes public school districts, charter schools, which are also public schools, as well as any private K-12 schools that might receive any form of federal funds whether through a school lunch program that receives funding or maybe funding through books or curriculum,” Tang said.
For example, if a private school received Paycheck Protection Program loans during the pandemic, it would be obligated to follow Title IX until those loans are forgiven or repaid, Tang said.
People also commonly think Title IX only applies to athletics, Tang said. In reality, it applies to any educational function.
That means schools can’t prohibit girls from participating in non-athletic programs like debate or robotics clubs. It also prohibits schools from establishing single-gender classes in which one gender receives a better education and superior resources.
“It’s so much broader than athletics,” Tang said. “It also prohibits sex-based harassment, which includes sexual assault and dating violence, in schools and requires schools to address those. It prohibits discrimination against pregnant students and students who are parenting. It prohibits discrimination against LGBTQI+ students.”
In actuality, the law applies to any entity that receives federal funding and operates an educational program, including K-12 schools, museums, libraries, and prison education programs.
“That includes public school districts, charter schools, which are also public schools, as well as any private K-12 schools that might receive any form of federal funds whether through a school lunch program that receives funding or maybe funding through books or curriculum,” Tang said.
For example, if a private school received Paycheck Protection Program loans during the pandemic, it would be obligated to follow Title IX until those loans are forgiven or repaid, Tang said.
People also commonly think Title IX only applies to athletics, Tang said. In reality, it applies to any educational function.
That means schools can’t prohibit girls from participating in non-athletic programs like debate or robotics clubs. It also prohibits schools from establishing single-gender classes in which one gender receives a better education and superior resources.
“It’s so much broader than athletics,” Tang said. “It also prohibits sex-based harassment, which includes sexual assault and dating violence, in schools and requires schools to address those. It prohibits discrimination against pregnant students and students who are parenting. It prohibits discrimination against LGBTQI+ students.”
How has Title IX changed in recent years?
Few laws have been through the yo-yo of presidential politics quite like Title IX, with regulations and the way it’s enforced often changing depending on who occupies the White House.
When it passed in 1972, the law received broad bipartisan support, with a Democratic champion steering it through Congress and a Republican president signing it into law. But recent years have given way to more divided opinions on the law’s reach.
More recent changes to presidential interpretations and regulations have largely had to do with Title IX’s application to gender identity and the processes schools use to investigate and resolve sex discrimination claims.
In 2011, the Education Department’s office for civil rights under the Obama administration released a “dear colleague” letter stating that schools must use a “preponderance of evidence” standard when evaluating harassment or sexual violence complaints under Title IX, enabling institutions to find someone had violated others’ Title IX rights when “it is more likely than not that sexual harassment or violence occurred.” That standard is less strict than a “clear and convincing evidence” standard, which suggests that “it is highly probable or reasonably certain that the sexual harassment or violence occurred,” according to the letter. Schools previously could have used either standard in evaluating whether someone violated a student or staff member’s Title IX rights. Sexual assault victims and their advocates, particularly on college campuses, praised this change.
In that letter, the department also stated that sexual harassment and sex discrimination could constitute a “hostile environment” if it “is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.”
Under the Obama-era guidance, harassment or discrimination didn’t have to be repeated for it to be considered to constitute a “hostile environment” as long as it was serious and severe enough. Schools that are found to have allowed a hostile environment are considered to have violated Title IX.
Later in 2016, the Obama administration released another letter saying that schools are obligated under Title IX to provide transgender students with locker rooms and restrooms that align with their gender identity.
The Trump administration rescinded both of those letters.
In 2017, the Education Department under former Secretary of Education Betsy DeVos released interim guidance that said schools could use either the “preponderance of evidence” or the stricter “clear and convincing” standards when evaluating sex discrimination claims. It also advised schools to return to the Bush-era definition of “hostile environment,” under which harassment would need to happen repeatedly to qualify as creating a hostile environment, regardless of severity.
The Trump administration also rescinded the Obama administration letter regarding Title IX protections for transgender youth. In 2020, the Trump administration finalized its own interpretation of the law through an official revision to the rule.
With the Biden administration, that’s all changed—again.
In April, the administration released its finalized revision to Title IX, which reverts to the Obama-era definition of a hostile environment, meaning that harassment or discrimination doesn’t have to repeatedly occur for it to be considered hostile. It also restores the terms of the Obama-era guidance on resolving sex discrimination claims, requiring that schools use the “preponderance of evidence” standard in evaluating sex discrimination, harassment, and assault claims rather than choosing between that standard and “clear and convincing.”
It also took Obama’s guidance further by explicitly writing into federal regulation that Title IX outlaws discrimination based on a person’s sexuality or gender identity and requiring schools to allow transgender students to use bathrooms that align with their gender identity.
When it passed in 1972, the law received broad bipartisan support, with a Democratic champion steering it through Congress and a Republican president signing it into law. But recent years have given way to more divided opinions on the law’s reach.
More recent changes to presidential interpretations and regulations have largely had to do with Title IX’s application to gender identity and the processes schools use to investigate and resolve sex discrimination claims.
In 2011, the Education Department’s office for civil rights under the Obama administration released a “dear colleague” letter stating that schools must use a “preponderance of evidence” standard when evaluating harassment or sexual violence complaints under Title IX, enabling institutions to find someone had violated others’ Title IX rights when “it is more likely than not that sexual harassment or violence occurred.” That standard is less strict than a “clear and convincing evidence” standard, which suggests that “it is highly probable or reasonably certain that the sexual harassment or violence occurred,” according to the letter. Schools previously could have used either standard in evaluating whether someone violated a student or staff member’s Title IX rights. Sexual assault victims and their advocates, particularly on college campuses, praised this change.
In that letter, the department also stated that sexual harassment and sex discrimination could constitute a “hostile environment” if it “is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.”
Under the Obama-era guidance, harassment or discrimination didn’t have to be repeated for it to be considered to constitute a “hostile environment” as long as it was serious and severe enough. Schools that are found to have allowed a hostile environment are considered to have violated Title IX.
Later in 2016, the Obama administration released another letter saying that schools are obligated under Title IX to provide transgender students with locker rooms and restrooms that align with their gender identity.
The Trump administration rescinded both of those letters.
In 2017, the Education Department under former Secretary of Education Betsy DeVos released interim guidance that said schools could use either the “preponderance of evidence” or the stricter “clear and convincing” standards when evaluating sex discrimination claims. It also advised schools to return to the Bush-era definition of “hostile environment,” under which harassment would need to happen repeatedly to qualify as creating a hostile environment, regardless of severity.
The Trump administration also rescinded the Obama administration letter regarding Title IX protections for transgender youth. In 2020, the Trump administration finalized its own interpretation of the law through an official revision to the rule.
With the Biden administration, that’s all changed—again.
In April, the administration released its finalized revision to Title IX, which reverts to the Obama-era definition of a hostile environment, meaning that harassment or discrimination doesn’t have to repeatedly occur for it to be considered hostile. It also restores the terms of the Obama-era guidance on resolving sex discrimination claims, requiring that schools use the “preponderance of evidence” standard in evaluating sex discrimination, harassment, and assault claims rather than choosing between that standard and “clear and convincing.”
It also took Obama’s guidance further by explicitly writing into federal regulation that Title IX outlaws discrimination based on a person’s sexuality or gender identity and requiring schools to allow transgender students to use bathrooms that align with their gender identity.
What do schools need to do when there’s a Title IX complaint?
All schools are required to have a process for students and staff to submit a Title IX complaint and a procedure for how the school investigates and resolves it.
Under the Biden administration’s regulation, school districts must designate a Title IX coordinator, investigator, and decisionmaker, which can be three separate people or one person filling all three roles. The people in those positions are responsible for steering the complaints through the investigation process.
The Title IX coordinator is also responsible for ensuring all students, staff, and parents understand their rights under Title IX and how they can submit Title IX complaints.
Schools have until Aug. 1 to come into compliance with the Biden administration’s revised regulation. They shouldn’t wait to get materials and workgroups together to get started on that work, according to lawyers who help schools comply with Title IX.
Ultimately, the Biden administration’s regulation should make things easier for districts, lawyers say, as it simplifies staffing requirements—which could help especially in small districts—and allows districts to handle a broader swath of conduct complaints under the same grievance process.
Critics say the return to the Obama-era “preponderance of evidence” standard makes it more difficult for people accused of sexual assault, harassment, and discrimination to defend themselves in a Title IX investigation. But advocates for survivors of sexual assault on campuses say it’s a major improvement from the Trump-era rules.
Under the Biden administration’s regulation, school districts must designate a Title IX coordinator, investigator, and decisionmaker, which can be three separate people or one person filling all three roles. The people in those positions are responsible for steering the complaints through the investigation process.
The Title IX coordinator is also responsible for ensuring all students, staff, and parents understand their rights under Title IX and how they can submit Title IX complaints.
Schools have until Aug. 1 to come into compliance with the Biden administration’s revised regulation. They shouldn’t wait to get materials and workgroups together to get started on that work, according to lawyers who help schools comply with Title IX.
Ultimately, the Biden administration’s regulation should make things easier for districts, lawyers say, as it simplifies staffing requirements—which could help especially in small districts—and allows districts to handle a broader swath of conduct complaints under the same grievance process.
Critics say the return to the Obama-era “preponderance of evidence” standard makes it more difficult for people accused of sexual assault, harassment, and discrimination to defend themselves in a Title IX investigation. But advocates for survivors of sexual assault on campuses say it’s a major improvement from the Trump-era rules.
What happens when a school violates Title IX?
In order for a school to be found in violation of Title IX, the Education Department’s office for civil rights must first investigate, most often prompted by a complaint. At times, the office has launched an investigation without a formal complaint after becoming aware of potential violations through media coverage or other means.
Schools can violate Title IX both through discrimination against students on the basis of sex, sexuality, or gender identity, and by failing to appropriately investigate and respond to sex-discrimination, harassment, or assault complaints from students or staff.
Because Title IX is tied to schools’ receipt of federal funding, the major risk schools run is losing it. But that’s extremely unlikely to happen.
Often when OCR finds that a school has violated the law, it imposes a fine and mandates that the school come into compliance.
Schools can avoid an investigation and potential fine by voluntarily coming into compliance with the law when a complaint is filed, Tang said. Every time OCR decides to investigate a complaint of a Title IX violation, it notifies the school and gives it the ability to come into compliance before it launches the probe.
If OCR determines a school did violate Title IX and it refuses to come into compliance, the office can decide to remove the school’s funding. It’s more common, however for OCR to arrive at settlements with schools and districts that prescribe measures they can take to correct the violations.
OCR has limited capacity to investigate complaints. As of May 31, the office had more than 1,300 open Title IX cases involving K-12 schools. The earliest of those cases dated back to 2007, according to an OCR database.
The Education Department has requested an additional $22 million for OCR in its 2025 budget proposal, which Education Secretary Miguel Cardona said would help it investigate complaints more swiftly.
Schools can violate Title IX both through discrimination against students on the basis of sex, sexuality, or gender identity, and by failing to appropriately investigate and respond to sex-discrimination, harassment, or assault complaints from students or staff.
Because Title IX is tied to schools’ receipt of federal funding, the major risk schools run is losing it. But that’s extremely unlikely to happen.
Often when OCR finds that a school has violated the law, it imposes a fine and mandates that the school come into compliance.
Schools can avoid an investigation and potential fine by voluntarily coming into compliance with the law when a complaint is filed, Tang said. Every time OCR decides to investigate a complaint of a Title IX violation, it notifies the school and gives it the ability to come into compliance before it launches the probe.
If OCR determines a school did violate Title IX and it refuses to come into compliance, the office can decide to remove the school’s funding. It’s more common, however for OCR to arrive at settlements with schools and districts that prescribe measures they can take to correct the violations.
OCR has limited capacity to investigate complaints. As of May 31, the office had more than 1,300 open Title IX cases involving K-12 schools. The earliest of those cases dated back to 2007, according to an OCR database.
The Education Department has requested an additional $22 million for OCR in its 2025 budget proposal, which Education Secretary Miguel Cardona said would help it investigate complaints more swiftly.
Why are some opposed to the new regulation?
Most of the opposition to the Biden administration’s Title IX rule is focused on its inclusion of gender identity in a newly developed definition of sex discrimination. The statutory text passed by Congress doesn’t include definitions for “sex discrimination” or “sex-based harassment,” so the Biden administration defined them in its regulation that it could develop through a prescribed process without approval from Congress.
While LGBTQ+ advocates have applauded the administration for including gender identity in the definition, many conservative politicians and parents’ rights advocates have said its inclusion violates the rights of cisgender women.
“Gender, according to gender theorists, does not have a stable definition so you are converting something that refers to the way in which you were born, in your biology, to a feeling,” said Jonathan Butcher, an education policy research fellow at The Heritage Foundation, a conservative policy think tank opposes Biden’s Title IX revision and has prioritized restoring Trump-era Title IX regulations in its Project 2025 policy agenda for a conservative president. “That puts women and girls in danger because it allows men in their private spaces and it makes athletics unfair because it allows men to compete against women.”
That argument appears in the three lawsuits currently filed against the Education Department in response to the rule. It’s also the basis of the 25 state laws and regulations that bar schools from allowing transgender girls to participate in girls’ sports.
“It is clear in the text of Title IX itself, and in the decades-long impact of Title IX, that its enactment was created to apply to two sexes,” Judge Terry Doughty said in his order blocking the rule. “There is nothing in the text or history of Title IX indicating that the law was meant to apply to anyone other than biological men and/ or biological women.”
That view of gender identity is damaging to transgender and nonbinary youth, Tang said. Federal judges have already blocked state laws in Arizona, Idaho, Utah, and West Virginia barring transgender athletes from participating in sports that align with their gender identity.
“We have seen an unprecedented wave of attacks on LGBTQI+ students, especially on transgender, nonbinary, and intersex youth in the states and at the local level,” Tang said. “They are growing more vicious every day. We’ve also seen federal lawmakers attempt to attack LGBTQI+ youth as well. So these clarified protections for LGBTQI+ students in the federal regulations are very important.”
Despite the focus on transgender athletes and competitive fairness, the number of transgender athletes in school athletics is very small. Only 2 percent of high schoolers identify as transgender, according to a 2019 study from the Centers for Disease Control and Prevention. And transgender youth are less likely than their cisgender peers to participate in sports. Nineteen percent of transgender and gender-expansive youth reported playing sports in the Human Rights Campaign's 2022 Youth Survey, compared with nearly half of all high school-age youth.
A review of scientific research on transgender women athletes by E-Alliance, a Canadian organization that advocates for LGBTQ+ youth, found that any biomedical evidence of transgender women's competitive advantage in elite sports was inconclusive. Meanwhile, the review found that there are more influential sociocultural factors that affect athletic performance, including socioeconomics, nutrition, equipment, training opportunities, and coaching salaries.
While LGBTQ+ advocates have applauded the administration for including gender identity in the definition, many conservative politicians and parents’ rights advocates have said its inclusion violates the rights of cisgender women.
“Gender, according to gender theorists, does not have a stable definition so you are converting something that refers to the way in which you were born, in your biology, to a feeling,” said Jonathan Butcher, an education policy research fellow at The Heritage Foundation, a conservative policy think tank opposes Biden’s Title IX revision and has prioritized restoring Trump-era Title IX regulations in its Project 2025 policy agenda for a conservative president. “That puts women and girls in danger because it allows men in their private spaces and it makes athletics unfair because it allows men to compete against women.”
That argument appears in the three lawsuits currently filed against the Education Department in response to the rule. It’s also the basis of the 25 state laws and regulations that bar schools from allowing transgender girls to participate in girls’ sports.
“It is clear in the text of Title IX itself, and in the decades-long impact of Title IX, that its enactment was created to apply to two sexes,” Judge Terry Doughty said in his order blocking the rule. “There is nothing in the text or history of Title IX indicating that the law was meant to apply to anyone other than biological men and/ or biological women.”
That view of gender identity is damaging to transgender and nonbinary youth, Tang said. Federal judges have already blocked state laws in Arizona, Idaho, Utah, and West Virginia barring transgender athletes from participating in sports that align with their gender identity.
“We have seen an unprecedented wave of attacks on LGBTQI+ students, especially on transgender, nonbinary, and intersex youth in the states and at the local level,” Tang said. “They are growing more vicious every day. We’ve also seen federal lawmakers attempt to attack LGBTQI+ youth as well. So these clarified protections for LGBTQI+ students in the federal regulations are very important.”
Despite the focus on transgender athletes and competitive fairness, the number of transgender athletes in school athletics is very small. Only 2 percent of high schoolers identify as transgender, according to a 2019 study from the Centers for Disease Control and Prevention. And transgender youth are less likely than their cisgender peers to participate in sports. Nineteen percent of transgender and gender-expansive youth reported playing sports in the Human Rights Campaign's 2022 Youth Survey, compared with nearly half of all high school-age youth.
A review of scientific research on transgender women athletes by E-Alliance, a Canadian organization that advocates for LGBTQ+ youth, found that any biomedical evidence of transgender women's competitive advantage in elite sports was inconclusive. Meanwhile, the review found that there are more influential sociocultural factors that affect athletic performance, including socioeconomics, nutrition, equipment, training opportunities, and coaching salaries.
What’s next for Title IX?
The Biden administration’s revised rule doesn’t directly address athletics. The Education Department has said it will finalize a separate revision on athletics in the future, but it hasn’t specified when.
The proposed revision, which was released in April 2023, would prohibit schools from banning all transgender athletes from joining school athletic teams that align with their gender identity. But the rule would allow schools to prevent transgender students from playing in specific circumstances, such as in highly competitive sports.
Schools would have the ability to develop eligibility criteria based on the sports program’s objectives, such as fairness in competition, opportunities to learn teamwork, or prevention of sports-related injuries. Schools could not base those criteria on “the disapproval of transgender students or a desire to harm a particular student,” according to a fact sheet on the proposed rule.
If finalized as proposed, the rule would threaten the legality of 25 state laws and likely set off another wave of lawsuits from conservative critics. Meanwhile, school districts could be left in the middle, unsure of which set of rules—their state’s or the federal government’s—to follow.
The proposed revision, which was released in April 2023, would prohibit schools from banning all transgender athletes from joining school athletic teams that align with their gender identity. But the rule would allow schools to prevent transgender students from playing in specific circumstances, such as in highly competitive sports.
Schools would have the ability to develop eligibility criteria based on the sports program’s objectives, such as fairness in competition, opportunities to learn teamwork, or prevention of sports-related injuries. Schools could not base those criteria on “the disapproval of transgender students or a desire to harm a particular student,” according to a fact sheet on the proposed rule.
If finalized as proposed, the rule would threaten the legality of 25 state laws and likely set off another wave of lawsuits from conservative critics. Meanwhile, school districts could be left in the middle, unsure of which set of rules—their state’s or the federal government’s—to follow.
Education Issues, Explained
Go deeper on important K-12 issues with these research-based background explainers from Education Week.
