Title IX Rules Revert Back to 2020 Status: What Does That Mean?
| | Title IX
The Trump administration wasted no time sending a message about many of the Title IX policies implemented by the previous administration. Among the numerous executive orders released on Inauguration Day, Executive Order 14168 essentially declared that Title IX protections did not extend to discrimination on the basis of gender identity. Then, before the month was out, the U.S. Department of Education issued formal guidance in a “Dear Colleague” letter directing schools to apply the 2020 Title IX Rule rather than the Rule released by the Biden administration in 2024.
So what exactly does this mean? When are schools supposed to change their policies? What about complaints filed or cases that arose between the time the new rules took effect in 2024 and the new guidance was released in 2025? Here, we examine the Department’s guidance to find out what complainants and respondents need to know about the status of Title IX rules at the federal level and policies at individual institutions.
Overview of the Department’s Guidance
On January 31, 2025, the Department of Education announced that effective immediately, the enforcement arm of the agency, the Office for Civil Rights, would be enforcing Title IX protections “under the provisions of the 2020 Title IX Rule, rather than the recently invalidated 2024 Title IX Rule.” A few weeks earlier, the U.S. District Court for the Eastern District of Kentucky issued a decision that purported to vacate the 2024 Rule and prohibit its enforcement anywhere in the U.S., but the court’s action could have been overturned on appeal. The issuance of official guidance from the agency charged with enforcing Title IX makes it clear that the 2024 provisions are unenforceable throughout the country.
When referring to enforcement of the Title IX Rule, the Department specifically highlighted five issues:
- The definition of sexual harassment
- Procedural protections for complainants and respondents
- Provision of supportive measures for complainants
- Reporting processes at the school level
- The interpretation of “sex”
As was the case with the judicial challenges to the 2024 Title IX regulations and the subsequent attention in the press, much of the focus on the Dear Colleague letter is likely to involve the last issue mentioned, the definition of sex. The Biden administration had made it clear that they believed Title IX protections extended to include actions considered to constitute discrimination on the basis of both gender identity and sexual orientation. The Trump administration’s opening salvo on inauguration day made it clear that gender identity will not be afforded any protection, but a closer reading is required to understand whether Title IX protections will be extended to discrimination that is based on sexual orientation.
Definition of Sexual Harassment
Writing for the Department of Education’s Office for Civil Rights, Acting Assistant Secretary Craig Turner stated that “the binding regulatory framework for Title IX enforcement includes the principles and provisions of the 2020 Title IX Rule” along with “longstanding” additional Title IX regulations. He directs schools to “resources” pertaining to those rules that provide an overview of Title IX as a whole and summaries of provisions of the 2020 regulations.
Sexual harassment is defined in the 2020 Final Rule to include three broad types of sexual misconduct:
- Quid pro quo harassment by an employee of an educational institution
- Unwelcome offensive conduct that denies access to equal education opportunities
- Sexual violence or assault (as defined under certain federal statutes)
The standard for determining when offensive conduct should be treated as actionable sexual harassment has fluctuated over time. Under the 2020 rules, “any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access” is considered sexual harassment in violation of Title IX. The 2024 rules sought to expand this definition to cover conduct that was either severe or pervasive rather than requiring conduct to be both severe and pervasive. Those rules also treated conduct as sexual harassment under Title IX if the conduct limited equal access to education rather than requiring the conduct to actually deny equal access.
Since the 2024 rules have been rejected, the earlier definition remains in force: to be actionable under Title IX unwelcome offensive conduct must be both severe and pervasive, and it must effectively prevent the complainant from obtaining equal access to educational programs.
Procedural Protections and Due Process
One of the driving forces behind the overhaul of the Title IX rules and policies in 2020 was a desire to provide more protections for respondents accused of a Title IX violation. Many people felt that policies put in effect during the Obama administration created an automatic bias against respondents who denied their due process rights.
The 2020 rules established new procedural protections. While the protections often apply to both complainants and respondents, it was the respondents who were seen as the primary beneficiaries of the changes. Opponents alleged that the procedural protections made it too difficult for complainants to prove responsibility or even to complete the investigation and complaint process without suffering trauma. In the 2024 rules, the Biden administration sought to reverse many of the procedural changes of 2020.
Live Hearing Requirements
The 2020 rules require colleges and universities to include provisions in their grievance processes that provide for a living hearing to determine whether a respondent should be held responsible for a Title IX violation. During these hearings, advisors working with complainants and respondents must be permitted to cross-examine the other party and witnesses. While the hearings must be live, parties may be located in separate rooms or all parties may appear virtually.
While the 2024 rules allowed schools to hold less formal adjudication processes to assess responsibility for a Title IX violation, the effective repeal of those rules restores the requirement for post-secondary schools to offer live hearings with cross-examination. (K-12 schools may offer live hearings but are not required to do so.)
Burden of Proof
The rules have also fluctuated with regard to the burden of proof necessary to find that a violation of Title IX occurred. In criminal cases, the prosecution must prove that a defendant is guilty beyond a reasonable doubt, which is the highest standard of proof. In cases decided in civil court, the standard is much lower. A plaintiff only needs to prove a defendant’s responsibility by a “preponderance of the evidence.” Generally, this is defined to specify that it must be shown that it is more likely than not that the alleged action occurred.
In between these high and low standards to meet the burden of proof, there is a medium standard—the “clear and convincing evidence” standard. This has been defined as a finding that it’s “highly probable” that a violation occurred. The 2020 rules required schools holding Title IX disciplinary proceedings to choose one evidentiary standard to use for all cases, and that could either be the clear and convincing standard or the preponderance of the evidence standard.
Moreover, the rules specify that both the burden of proof and the burden of gathering evidence rest with the schools rather than the parties who are part of the proceedings.
Other Procedural Protections
Among the other protections put in place by the 2020 rules and reaffirmed by recent guidance and court action:
- The “single investigator” model is not allowed. A school may not allow the person who serves as Title IX Coordinator or investigated the complaint to serve as the decision-maker in the case.
- Schools are required to offer a process for both complainants and respondents to appeal the decision in a Title IX adjudication.
- Schools are prohibited from imposing any sanctions on respondents before they have followed the grievance process to a conclusion.
Provision of Supportive Measures
The 2020 Final Rule included a definition of supportive measures that schools must offer to enable both complainants and respondents to receive equal access to school programs. This requires a balance because many measures that could help a complainant feel safe—such as refusing to allow the respondent on campus—would create serious hardship for the respondent.
The 2020 rules defined supportive measures as “individualized services reasonably available that are nonpunitive, non-disciplinary, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment.” These measures should be “not clearly unreasonable in light of the known circumstances” and they must be provided for free. Examples often given include offering a student an extension on a deadline and counseling services.
Reporting Processes at the School Level
Both the Trump and Biden administrations have been eager to show their enthusiasm for Title IX when it comes to publicizing the ways to access the Title IX Coordinator. The 2020 rules include provisions requiring schools to not only notify students and employees about contact information for the institution’s Title IX Coordinator but also to notify:
- Those applying for admission
- Those applying for employment
- Parents and guardians of K-12 students
- All unions
In addition, the rules require the contact information to be displayed on the school’s website “prominently.” The rules also specify that any person can report sexual harassment or other sex discrimination in person, by phone, by mail, or via email.
While the obligations with regard to identifying the Title IX Coordinator are pretty clear, the schools’ obligations with respect to handling complaints are far more nebulous. Institutions must respond “promptly,” but there is no set timeframe. Moreover, the type of response only needs to be “not deliberately indifferent,” which is defined as “not clearly unreasonable in light of the known circumstances.” Attorneys rely on precedent from case law to determine whether a school has followed obligations to respond properly to a Title IX complaint filed by a student, faculty, or staff member.
The Interpretation of Sex Under Title IX
Last but certainly not least, among the provisions of the 2020 Rule that are reaffirmed in the Department’s Dear Colleague letter are those relating to the definition of “sex” for the purpose of Title IX protections. The original statute states that “[n]o 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.”
The words “on the basis of sex” have been interpreted differently by courts and regulators in recent years. Guidance and regulations from the Biden Administration expanded the definition to include:
- Sex stereotypes
- Sex characteristics
- Pregnancy, lactation, and related conditions
- Marital, family, and parental status
- Sexual orientation
- Gender identity
The inclusion of the final characteristic prompted outrage among many and served as the focal point for lawsuits challenging the legality of the Administration’s actions. The federal court that vacated the 2024 rules stated that interpreting Title IX to include protections for gender identity “turns Title IX on its head,” and the Department of Education under the new administration now agrees with that assessment. In addition to citing the recent decision from the Eastern District of Kentucky, Acting Assistant Secretary for Civil Rights Craig Trainor also cited Executive Order 14168, which ordered all Executive agencies and departments to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes” and stated that gender identity “cannot be recognized as a replacement for sex.”
The Dear Colleague letter, therefore, orders schools to interpret “sex” as “the objective, immutable characteristic of being born male or female as outlined in the 2020 Title IX Rule.”
Help with Title IX Issues in This Rapidly Changing Legal Environment
The Department of Education has announced that any open Title IX investigations that were initiated under the 2024 Title IX Rule should be “immediately reoriented” to comply with the requirements set forth in the 2020 Rule. How this will play out in practice remains to be seen. Moreover, it would seem that both judicial and regulatory actions could provide grounds for legal challenges to adjudications that concluded earlier.
The bottom line is that it is extremely important to consult a legal team that understands the myriad details of Title IX history and interpretation if you want to ensure your rights as a complainant or respondent are fully protected. At Nesenoff & Miltenberg, we have a degree of experience handling Title IX issues that few firms anywhere in the country can match. Whether you are in the midst of a Title IX proceeding, are contemplating a future case, or want to know your options for appealing a previous decision, we invite you to contact us for a confidential consultation.