Federal judge rules out Biden’s Title IX overhaul

A years-long effort to reform how colleges respond to reports of sexual harassment and discrimination and expand protections for transgender students has died after a judge ruled Thursday that the Biden administration’s changes to Title IX of the 1972 Education Amendments were unconstitutional.

The court order leaves the law statewide and could create more confusion for colleges as they seek to move forward without conflicting with the federal gender equality law. Title IX reforms were already on hold in 26 states and hundreds of colleges, thanks to a series of lawsuits from 26 Republican attorneys general. Thursday’s order is the first final decision in those cases and was part of a lawsuit filed by Indiana, Kentucky, Ohio, Tennessee, Virginia and West Virginia.

Republican lawmakers and state officials hailed the decision as a victory for women and girls while LGBTQ+ student advocates criticized the decision as an attack on transgender students. Biden’s legislation allowed students to use gender-appropriate bathrooms and locker rooms.

Chief Judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky, a former critic of the law, wrote in a 15-page opinion that the laws suffer from “serious constitutional weaknesses.” For example, using inappropriate student pronouns may be considered harassment under the law. That provision “offends the First Amendment,” wrote Reeves, who was appointed by George W. Bush.

“As expected, the courts have continued to find it impossible to justify the Biden administration’s changes to Title IX laws that take away students’ free speech and due process rights,” said Tyler Coward, senior counsel for government affairs at the Foundation for Human Rights and Expression, a free speech and civil rights organization.

The decision is the latest legal setback for Biden’s high-profile agenda, which has not gone down well in federal court.

‘Back in Time’

Colleges and universities will now return to the previous Title IX law, which went into effect in the summer of 2020 during the first Trump administration. Those laws require colleges to hold live hearings and allow cross-examination to allow those accused of sexual misconduct to confront their accusers — something the Biden rules repeal. Additionally, the 2020 rules defined sexual harassment more narrowly than the Biden Title IX law.

“It’s worth it, I think—everything goes back four years,” said Brigid Harrington, a higher education attorney at Bowditch & Dewey who specializes in human rights compliance. “The schools that were assigned were already there, they don’t change things for many.”

Colleges do not have to abandon all of their new policies related to harassment and discrimination; they can keep the parts that do not conflict with the 2020 law. For example, under the 2024 rules, colleges must give pregnant students notice of their rights, and the 2020 rule does not prevent a college from doing so. (Reeves did not argue against the pregnancy provisions but said, “It’s just not fair for the court to rewrite the rules by removing harmful things.”)

Thursday’s decision was not a complete surprise to colleges and universities, given the order and the impending change in administration. Andrea Stagg, director of consulting services at Grand River Solutions, a firm that works with colleges on Title IX and other issues, said colleges have started talking about what to change in their policies and what to keep.

However, re-implementing the 2020 regulations will mean re-training and re-educating students, staff and faculty about the changes.

“It’s very complicated, expensive and frustrating … and people don’t have the resources,” she said. “In a field that’s already very tired … it slows you down to work hard and change the rules for yourself.”

Several other lawsuits challenging the law are pending, and the Biden administration could appeal the decision to the U.S. Court of Appeals for the Sixth Circuit, so Thursday’s decision may not be the end of the legal dispute over Title IX. The Department of Education could not be reached on Thursday for comment because the offices were closed in commemoration of the passing of former president Jimmy Carter.

“I don’t think this is the last we’ll hear of this,” Harrington said. “I think human rights will be a big topic in the next four years.”

Abandonment or Attack?

Republican attorneys general who sued the Biden administration and activist lawyers who criticized the law hailed the judge’s decision as a “huge victory” and a sign that “sense is slowly coming back.”

“The court’s decision is yet another denial of the Biden administration’s proposal to enforce a strict gender stereotype as unconstitutional and illegal,” Tennessee Attorney General Jonathan Skrmetti said in a statement. “Because the Biden rule has been completely abandoned, President Trump will be free to revisit our Title IX laws when he returns to office. [Jan. 20].”

President-elect Donald Trump has criticized Biden’s Title II changes, and many experts expect him to issue tougher new regulations than his 2020 law, particularly regarding LGBTQ+ students.

Congressional Republicans, who wanted to repeal Title IX, also praised the decision and pledged to protect educational opportunities for women and girls. Passing legislation that would prevent transgender students from participating in a gender-appropriate sports team is a top House priority.

“It’s clear that the Biden-Harris administration has completely lost its way on Title IX,” said Louisiana Senator Dr. Bill Cassidy, chairman of the HELP committee, in a news release. “They betrayed the original intent of Title IX by removing long-standing protections that guaranteed justice for women and girls.”

Representative Tim Walberg, a Michigan Republican who chairs the House Education and Labor Committee, said Biden’s proposed rewrite would “undermine the safety, freedom and fairness of women.”

At the time, advocates for LGBTQ+ students and those who experienced harassment or sexual violence described the decision as an attack on transgender students and others that could affect their education.

“Since these protections have been removed in some states, students who have been sexually harassed have had their complaints dismissed, or worse, punished by their schools after reporting; pregnant students were unfairly punished for taking time off to give birth; and LGBTQI+ students face brutal bullying and harassment simply because they are who they are,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center.

Tracey Vitchers, executive director of It’s On Us, a national organization that works to combat sexual harassment on campus, responded to allegations that overturning the Biden law would protect women and girls.

“The 2020 laws do documented damage to the safety of women and girls by making it difficult to report and get justice if they face sexual violence at school,” she said. “If preserving the rights and safety of women and girls were the true litmus test in today’s decision, the judge would have chosen to uphold Biden’s law. Instead, the safety of women and girls is reinforced by discrimination” against trans people.

Vitchers added that while Title IX is important, colleges are required under state and federal laws to respond to reports of harassment and address student safety.

“Institutions will have to find creative ways to protect the rights and safety of students in their institutions under this new situation,” he said. “If Title IX is going to continue to be the ugly political football it has become, we need to see schools invest in evidence-based methods to prevent sexual violence, because the main goal is to ensure that students receive a non-sexual education.” .”