Title IX Protections Expanded to LGBTQ+ Students

Nov. 2, 2022 By NMGL

In June 2022, the Biden administration released revised guidelines for Title IX that expanded the scope of federal gender policy to include discrimination based on sexual orientation and gender identity.

The federal Department of Education (DOE) argued that Title IX’s prohibition of discrimination based on sex includes “discrimination against an individual because, for example, they are or are perceived to be male, female, or nonbinary; transgender or cisgender; intersex; currently or previously pregnant; lesbian, gay, bisexual, queer, heterosexual, or asexual; or gender-conforming or gender-nonconforming.”

This would mark the first time that Title IX rules formally protect LGBTQ+ students. First codified into law over 50 years ago as part of the Education Amendments of 1972, Title IX is a provision that prohibits sex-based discrimination at educational institutions that receive federal aid. Title IX regulations cover colleges and universities, as well as elementary and secondary schools.

Changing guidance on Title IX

Although Title IX was enacted in the 1970s, it was not until 2011 that the DOE issued guidance to schools on how allegations of discrimination should be handled – guidance that changed several times as the White House shifted from Democratic to Republican control and back again.

“Starting around 2016, this issue took on more of a national dialogue,” explains attorney Andrew T. Miltenberg, a leading expert in Title IX cases.

“After congressional hearings and a lot of push and pull between various groups and bar associations, the Trump administration changed the regulations in some very fundamental ways, so that hearings and investigations on Title IX matters became more expansive. The rights of the accused became more expansive.”

In June 2022, under President Joe Biden, the DOE changed course again, effectively reversing some of the Trump-era guidance. In addition to enshrining protections for LGBTQ students, the guidance also specifically noted that Title IX covers discrimination against students who are pregnant.

Uncertainty around new 2022 regulations

The Biden administration announced its proposed changes to Title IX in the summer of 2022. Federal law requires a public comment period before the DOE can issue a final version of the proposed rules, during which stakeholders and the public can offer feedback and ask questions about the regulations. The 60-day comment period ended in September 2022, but the Office of Management and Budget (OMB) will need to review the regulatory language, so the new guidelines are unlikely to go into effect until at least 2023.

While some groups have championed the changes to Title IX, others are concerned that eliminating live hearings and cross-examination will result in a lack of due process for college students accused of assault. The DOE has also noted that more specific rules dealing with the rights of transgender students will be issued at a later date. In an increasingly polarized political environment, legal challenges to the final rules are likely.

Regardless of how students identify, what is important, Miltenberg notes, is that parents talk openly with their children before and during their time in college. “Parents really need to pay greater attention to how they guide their children on emotionally and physically intimate relationships, and their mental health,” he explains. And if allegations of sexual misconduct do occur in a school environment, both parties need to know where to go for help. “I think many students think they can deal with these things without telling their parents, and that usually ends up in disaster,” Miltenberg notes.

An experienced Title IX attorney can help guide you and your child through the disciplinary process – and work to make sure the school fulfills its obligations. For more information about representation in Title IX cases, contact the law office of Nesenoff & Miltenberg, LLP today.