Just three months before the presidential election, President Biden’s overhaul of the gender equity law known as Title IX went into effect, expanding protections for transgender students and changing how colleges respond to reports of sexual misconduct.
But those changes, which are already on hold in 26 states, are likely on the chopping block once President-elect Donald Trump takes office early next year.
Experts predict the president-elect’s administration won’t wait long before beginning the lengthy process of altering the Title IX regulations once again. It’s likely that this administration’s rule will mirror the regulations adopted during Trump’s first term—but some speculate this iteration will be even more conservative, especially where it comes to LGBTQ+ students, than the 2020 rule.
Trump’s Track Record
The Trump administration rolled out new regulations dictating colleges’ responsibilities under Title IX in spring 2020, capping a years-long effort to undo Obama-era Title IX changes.
The 2020 Title IX rule was most notable for the due process rights it afforded individuals accused of sexual harassment and assault. Under the Trump-era regulations, colleges universities were mandated to hold live hearings, including allowing for the cross-examination of complainants, in sexual misconduct investigations. Institutions were also forbidden from using the single-investigator model, in which the same campus official acts as both the investigator and adjudicator in a case.
Those regulations were lauded by those who argued that fairness in the Title IX process is imperative for sexual misconduct cases to reach an accurate and fair result—as well as by conservative advocates concerned about the adverse impacts of false accusations, which are estimated to make up between 2 and 8 percent of all reported sexual assault reports based on various research studies.
On the other hand, victims’ rights advocates strongly opposed the rule, arguing the regulations made it more difficult for survivors to report harassment and that the live hearings could retraumatize victims of sexual violence.
What’s Changed Since Then
Reversing the Trump rule was a top priority for the Biden administration, which fulfilled that promise earlier this year.
President Biden’s Title IX rule, which was only finalized this past April and went into effect in August, ended the live hearing requirement and added several new protections, including clarifying that LGBTQ+ and pregnant and parenting students are all protected from discrimination under Title IX.
The new protections for transgender students, which included allowing individuals to use bathrooms that match their gender identity, sparked the most backlash from Republicans. Lawmakers and conservative advocacy groups argued that by giving transgender women access to women’s restrooms, they made cisgender women less safe, undermining the intention of Title IX. (The little research that exists on the topic actually indicates public safety increases when transgender students can use the bathroom that aligns with their gender identity.)
A swath of lawsuits challenged the rule, eventually resulting in injunctions blocking the Department of Education from enforcing it at more than 670 institutions. These injunctions made implementing the already-complex rule more difficult for colleges and created a patchwork of Title IX policies across the country.
Still in the works is an athletics rule that would prohibit blanket bans that prevent transgender students from playing with a sports team that aligns with their gender identity. The proposed rule, released in April 2023, carved out opportunities to make guidelines based on age and sport. That rule has since been delayed. The Washington Post reported in March that the rule on athletics had been divided from the larger rule in part because Biden was worried about how its politics would play in the election.
What Has Trump Said
Title IX didn’t specifically come up much on the campaign trail, though Trump and many of his allies did attack transgender people—and Vice President Kamala Harris’s support for the LGBTQ+ community—numerous times.
Trump vowed, in his Madison Square Garden rally days before the election, to get “transgender insanity the hell out of our schools” and prevent people assigned male at birth from playing on women’s sports teams. On Joe Rogan’s podcast just before the election, Vice President–elect JD Vance claimed that white middle- and upper-middle-class teens choose to identify as transgender in order to differentiate themselves when applying to elite universities.
Plans to dismantle the Department of Education would certainly impact Title IX. Some proposals to abolish the department would move the agency responsible for investigating claims that institutions mishandled Title IX complaints or otherwise fostered a hostile learning environment based on a student’s sex to the Department of Justice. (The Office for Civil Rights is also responsible for investigating disability discrimination as well as campus antisemitism, among other areas of federal law.)
Betsy DeVos, the education secretary in Trump’s first term, also said in an interview with EdWeek that Title IX—especially eliminating trans students’ participation in women’s sports—should be among Trump’s top education priorities this term.
What Comes Next?
As the higher ed community readies for another Trump administration, many experts are waiting to see whom he appoints to lead the Office for Civil Rights and the overall department. That person will oversee enforcement of the Title IX rules and any effort to rewrite them. Other key areas to watch include:
Transgender students’ rights
Experts on both sides of the issue expect Trump will announce plans to review and revise the Title IX regulations early into his term.
But Shiwali Patel, senior director of safe and inclusive schools at the National Women’s Law Center, said she anticipates that the strong anti-transgender rhetoric that has been evident in Trump’s messaging this election season might indicate what he is planning to implement.
“We expect early on Trump will issue some sort of executive order or statement, some indication that the administration will begin the rule-making process to undue the Biden rule and go even further to redefine sex in a way that excludes trans and nonbinary people from protections,” she said. “I think they will go as far as to redefine sex under Title IX to have a very binary definition.”
That’s what organizations like the Alliance Defending Freedom, one of the organizations that sued to block the Biden regulations, are hoping for—if not more immediate action. Matt Bowman, senior counsel and director of regulatory practice at ADF, said he is hopeful that the courts, which have temporarily blocked Biden’s regulations, will permanently block them. At that point, he said, states should revert back to the Trump-era regulations rather than maintain any part of the 2024 rule, because “there are no redeemable portions of the illegal Biden Title IX rule. They are all infused with this dangerous gender ideology.”
The future of the trans athlete rule is also uncertain, as it likely won’t be finalized before Biden leaves office. Tracey Vitchers, executive director of It’s On Us, an advocacy and research organization focused on campus sexual violence, said she believes it is unlikely to move forward.
Reinstating due process protections
Trump’s new rule, whenever it comes to be, will likely reinstate due process provisions for accused students.
“Many other changes will undoubtedly be given serious consideration. However, these areas are most likely to draw relatively immediate attention because they are viewed as most directly impacting the fairness and defensibility of campus adjudications,” T. Markus Funk told Inside Higher Ed in an email. Funk is a partner with the law firm Perkins Coie who has advocated for due process in Title IX cases, including in an op-ed for Inside Higher Ed.
But making any changes to the regulation will take a long time, at least based on past examples. The Trump and Biden administrations finalized their rules in May and April, respectively, of their last year in office, in both cases after reviewing hundreds of thousands of comments. Patel said there is no way to legally eschew the rule-making process or make any changes to the existing Title IX rule outside of that process.
When asked about the administration’s plans for Title IX, Karoline Leavitt, a spokesperson for the Trump transition team, gave a canned response that has appeared in dozens of publications since the election: “The American people re-elected President Trump by a resounding margin giving him a mandate to implement the promises he made on the campaign trail. He will deliver.”
Vitchers said the lack of clarity about plans for the Department of Education, the Office for Civil Rights and Title IX specifically—coupled with the existing confusion over the blocked Biden rule on many campuses—is likely to cause problems for institutions in the coming months and years.
“It’s difficult to even begin to sort out what civil rights in higher education or even in K-12 education look like if the Department of Education is fully eliminated,” Vitchers said. “What we have seen so far is big claims … without any plan as to how that is going to be done, and how things like enforcement of civil rights laws like Title IX … [are] going to be handled. All the statements have been very vague, and that is naturally going to cause a lot of fear and confusion for students and for administrators in higher education.”