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Title IX: Continuing to Evolve at 50

Title IX contains 37 words. Yet those words transformed the administration of colleges over the past half century beginning in 1972. Title IX 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.”[1]

Since its enactment 50 years ago, Title IX has expanded its reach to require colleges to assume ever greater responsibilities. What does Title IX look like today? The previous two presidential administrations both made alterations to Title IX, and the Biden administration’s proposed amendments may change the law even further.  

Title IX Impact

First, who does Title IX impact? Title IX impacts educational programs and activities that receive federal funds—almost every higher-education institution in the country. The colleges’ programs and activities must operate in a nondiscriminatory manner regarding gender in all areas including athletics, recruitment, admissions, counseling, and financial assistance. Title IX truly affects every part of college life.

Sex-Based Discrimination

Second, what does Title IX prohibit? College programs must be administered in a nondiscriminatory manner. The law, best known for protecting women and girls from discrimination in sports, was “originally intended to protect girls from any discrimination that interferes with them receiving an education equal to other students.”[1] Sex-based discrimination includes sexual harassment and sexual violence. Sexual violence, as the U.S. Department of Education uses the term, refers to physical sexual acts perpetrated without consent.[2]

The Obama, Trump, and Biden administrations have all weighed in on the manner in which colleges should handle allegations of sexual assault. The obligations of colleges varied depending upon which administration was in office. The Obama administration “ramped up enforcement of Title IX in response to an increase in activism from college sexual assault survivors.”[3] Civil liberties groups and some law professors complained that the Obama rules failed to safeguard the due process rights of the accused including the ability to cross-examine the complainant and the presumption of innocence. The Trump administration reversed course, requiring colleges to hold hearings, allow cross-examination of parties and witnesses, and open Title IX cases only if the alleged assaults happened on campus.[4] The Trump-era mandates also ordered colleges to presume accused students to be innocent until grievance procedures end and to continue to permit informal resolutions of sexual misconduct complaints if both the accuser and the accused agree.[5] 

The Biden administration now seeks to reverse some of the previous administration’s requirements and implement some of its own.

Proposed Amendments

On June 23, 2022, the U.S. Department of Education released for public comment proposed changes to the regulations that help colleges implement Title IX. The U.S. Department of Education stated that the proposed amendments will “restore crucial protections” for victims of sexual harassment and assault and will “advance educational equity and opportunity for women.”[6] According to U.S. Secretary of Education Miguel Cardona, “As we celebrate the 50th Anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all our nation’s students—no matter where they live, who they are, or whom they love—can learn, grow, and thrive.”[7] 

Key changes in the proposed amendments are as follows:[8]

  • Protect students who face discrimination on the basis of sexual orientation and/or gender identity.
  • Protect students who are pregnant.
  • Require colleges to investigate claims of misconduct that occurred off-campus.
  • Allow colleges to offer informal resolution procedures for resolving sex discrimination complaints.
  • Eliminate requirement for a live hearing for evidence evaluation.
  • Allow colleges to use a single-investigator model if the college determines that would constitute a fair and reliable process.
  • Require colleges to have a process for the decision maker to assess the credibility of parties and witnesses with live questioning.  Colleges may allow but are not required to allow cross-examination of parties and witnesses.
  • Require use of the preponderance-of-the-evidence standard of proof unless the college uses the clear-and-convincing-evidence standard in all other comparable proceedings. 
  • Require colleges to offer supportive measures to students who have brought complaints of sex discrimination, not just students who have brought complaints of sexual harassment.

The proposed rules would keep some Trump-era mandates, such as provisions ordering colleges “to presume accused students to be innocent until grievance procedures end and to continue to permit informal resolutions of sexual misconduct complaints if both accuser and the accused agree.”[9]

Potential Positive Impacts

Proponents of the proposed amendments argue they will constitute a “historic gain for LGBTQ students,” following closely on the heels of the United States Supreme Court’s ruling in Bostock v. Clayton County, Georgia, 590 U.S. ____ (2020), holding that an employer violates Title VII by discriminating against someone because of their sexual orientation or gender identity.[10] Fatima Goss Graves, president of the National Women’s Law Center, described the proposed changes as “a move toward affirming the rights of pregnant and parenting students and LGBTQ+ students to learn with safety and dignity.”[11] Assistant Secretary for Civil Rights Catherine E. Lhamon stated that the proposed regulations ensure that “procedures for addressing complaints of sex discrimination, including sexual violence and other forms of sex-based harassment, are clear, effective, and fair to all involved.”[12]

Potential Challenges

Some say the latest round of proposed changes could put colleges “in the crosshairs of litigation” by students accused of sexual misconduct.[13] Patricia Hamill, partner and co-chair of the Title IX and Campus Discipline practice at Conrad O’Brien, expressed concern that in the guise of giving colleges “flexibility,” the Department of Education “is authorizing the roll back or revocation of due process and fairness rights for both parties: full access to evidence, and the right to a live hearing and direct, real-time cross-examination.”[14] Brooklyn College Professor KC Johnson said that colleges will “return to a system in which the accused student would neither see nor hear the witness testimony against him, but instead would have to rely on written summaries of that evidence prepared by the person who simultaneously did the investigation and made the final decision.”[15]  

Timeline for this Round of Title IX Changes

“It’s still unclear when the new regulations will officially take effect, but they will become public in May,” said Vanessa Harmoush, a spokesperson for the Department of Education.[16] Colleges will likely be required to implement these new rules during the 2023-24 school year. In preparation for these changes, it would be wise to review your college’s Title IX policies and processes so that your institution is ready to realign with the new regulations.


[1] "Title IX of the Education Amendments of 1972." U.S. Department of Justice, 

[2] Jimenez, Kayla. "Biden Administration Will Release New Title IX Rules in May. What to Expect." USA Today, February 8, 2023,

[3] "Sex-based Harassment." U.S. Department of Education Office for Civil Rights,

[4] Kingkade, Tyler. "Biden Admin Proposes Sweeping Changes to Title IX to Undo Trump-era Rules." NBC News. June 23, 2022,  

[5] Id.

[6] Id.

[7] "The U.S. Department of Education Releases Proposed Changes to Title IX Regulations, Invites Public Comment." U.S. Department of Education. June 23, 2022,  

[8] Id.

[9] "Federal Register Notice of Proposed Rulemaking Title IX of the Education Amendments of 1972." U.S. Department of Education. June 23, 2022,  

[10] Kingkade at 2.

[11] Camera, Lauren. "New Title IX Rules Would Extend Protections to Discrimination Based on Sexual Orientation, Gender Identity." U.S. News & World Report, June 23, 2022,

[12] Id.

[13] "The U.S. Department of Education Releases Proposed Changes to Title IX Regulations, Invites Public Comment." U.S. Department of Education. June 23, 2022,  

[14] Murphy, Colleen. "’A Wave of Litigation’ Likely as Proposed Title IX Changes Roll Back Due Process Rights at Universities, Observers Say." The American Lawyer, July 13, 2021,

[15] Id. 

[16] Id.

[17] Jimenez at 3.