The New Protections Added to Title IX—and the New Challenges it Faces

Title IX, a civil rights law enacted in 1972, is a statute meant to protect students from sex discrimination in educational environments to maintain equal opportunity to educational access. This year, the Biden administration released a new Title IX rule, which provides additional protections for those who are most likely to experience sex discrimination at school. Shiwali Patel, Senior Director of Safe and Inclusive Schools at the National Women’s Law Center, sits down with us to talk about what this rule change accomplishes and what challenges it faces.

In April 2024, the Biden administration released the new rule, which, most significantly, clarified protections for LGBTQI+ students, provided additional protections for pregnant and parenting students, and expands protections against sexual harassment. The rule also undid many of the Trump administration’s harmful Title IX changes. Unfortunately, these celebrated changes are being challenged in court. In addition, some congressional members are using the Congressional Review Act to attempt to reverse these protections.

Links from this episode

Shiwali Patel on X
NWLC on X
NWLC on Facebook
Factsheet on injunctions and their impact on Title IX
NWLC information on Title IX Congressional Review Act resolution
Biden’s New Title IX Rule: Fact Sheet and Chart
Sexual Assault on Campus: Will Title IX Rule Changes Make Schools Less Safe?

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Jennie: Hi rePROs. How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So, when you all are hearing this, it is like my second day back in the office from vacation, but this is actually me before my vacation. So, trying to get this all taken care of before I leave. I am very much looking forward to spending time in Wisconsin and just having a very chill time off and yeah, so excited. The one bummer right now is the AC in my unit went out and my schedule is so packed with recording a number of interviews around my vacation and trying to get a bunch done in advance that, like, I haven't had time to schedule somebody to come in just worrying about trying to get them in, in a very specific window around an interview. And so, I am sitting here melting. I luckily got like a big fan and that's helping, but while I'm recording, I cannot obviously have the fan on 'cause then y'all would hear that and that would be super distracting. So, I am sitting through my interviews and sitting through this now, just absolutely melting. Ugh. But I'll get it fixed as soon as I get back and hopefully the weather will be a little cooler. Let's see. I don't know that I have a ton else to talk about. I'm really just looking forward to my vacation and eating good food in Wisconsin. I'm gonna eat all the cheese curds and go to Culver's and have fried cheese curds and Concrete shake and all the things I’m thinking through all the things I need to do while I'm home. Very excited to see family and mostly I'm hoping to get a lot of like fun light reading done and spend some time outside and hopefully not get eaten by all the bugs and take advantage of all of the fresh produce back home, both from my mom's garden and stopping at the many roadside stands for fresh sweet corn and fruit and all the things. I'm very excited. Just like all the little things of thinking of what being back home in summer is. I don't often make it home in the summer. Every once in a while I'll go to Wisconsin in August or something, but I'm really excited to get to do it this year and like I said, eat all of the foods and spend time with family. So, and now I'm very bummed that when you're hearing this, I'm back in the office and back to the grind, but I'm sure I had a wonderful week back home away from all of the things. So I think we'll just go ahead and stop there. I don't, like I said, I'm doing this recording in advance, so like I don't really know what else I have to talk about 'cause I'm recording a couple intros in the next day or two. With that, let's go to this week's episode. And y'all, there has been so much happening around Title IX recently that we really needed to talk about it and talk about all that is going on, and I couldn't think of a better person to come on than Shiwali Patel with the National Women's Law Center to tell us all about what is happening. So, let's go to my interview with Shiwali.

Jennie: Hi Shiwali. Thank you so much for being here!

Shiwali: Hi Jennie. Thanks so much for welcoming me back. I am excited to be here.

Jennie: Honestly, I couldn't think of a better person to have come on to talk about all of the things happening around Title IX than you, so I'm so glad you're here.

Shiwali: Yeah, I am glad to be here. I'm not glad about all the things that are happening, but I know we'll get into it.

Jennie: Okay. But before we do that, and I get all excited and off track and forget to have you introduce yourself, would you like to introduce yourself and include your pronouns?

Shiwali: Sure. So, I'm Shiwali Patel. I am with the National Women's Law Center. I use she/her pronouns. I've been at NWLC for, gosh, now six years. And I am the Senior Director for Safe and Inclusive Schools. So, I work on all sorts of issues around gender equity and education and Title IX.

Jennie: Okay. So before we dig into all the things happening around Title IX, maybe we just need to take a step back just for people who aren't as familiar and talk about what is Title IX?

Shiwali: Yeah, so Title IX is a very important civil rights law. It was enacted in 1972, so over 50 years. It actually was the same year that the National Women's Law Center was founded. So since then, our organization has been fighting for strong Title IX enforcement and protections. And the core language of the law itself, the statute itself, is only 37 words long, but it's very broad in scope. And the Supreme Court has recognized that. Title IX addresses all sorts of protections that students have from sex discrimination and education, whether it's in admissions or housing or access to counseling, access to facilities for pregnant parenting students, Title IX protects them, protects against sexual harassment other sex-based harassment. It protects LGBTQI+ students. So, it's very broad in scope and the intent is so that every student can have equal educational opportunity, right? And so, there's just a lot of ways that it addresses how that can be accomplished.

Jennie: So, I think the big reason we're talking today is that the Biden administration made some changes into the way Title IX is implemented. Do you wanna talk a little bit about what the Biden administration did?

Shiwali: Sure. So, the Biden administration, just a few months ago, the end of April, released a new Title IX rule, which was quite significant. And it addressed protections that students and organizations like ours and other advocates have been fighting for since the beginning of the Biden administration. And these are regulations that have been created by the Department of Education, and they do a number of things. Most significantly, they clarify protections for LGBTQI+ students. Clarify what, you know, Title IX has always required in its broad mandate—that you as a student or employee of a school cannot be discriminated against because of your sexual orientation or gender identity or sex characteristics, that these protections against discrimination extend to access to sex separated facilities like restrooms and locker rooms, that students should be able to access those consistent with their gender identity. The rule also clarifies the types of protections and accommodations that schools have to offer to students who are pregnant and parenting. And the scope of pregnancy discrimination is broad. It's always recognized since these regulations were first enacted—1975 actually is when the Title IX regs first came out—that it includes students who terminate their pregnancy, including if they terminate through an abortion. And so the Biden regulations, the updates clarify the different ways that schools need to provide accommodations to protect those students' access to education. And then lastly, the Biden rule would undo, or would I say would like it's going to happen. It does undo much of the Trump administration's 2020 regulations. And these were extremely harmful regs that were created under the leadership of Betsy DeVos. Right? We all love, and I joke, former Secretary DeVos. She was not known as a champion for civil rights. The Trump administration was not known as a champion for protecting all students from discrimination or really anyone. And so this 2020, these 2020 regs really reflect that. And they significantly weakened protections against sexual harassment, including sexual assault, despite how prevalent it is, despite how far we still need to go to ensure that schools are safe and welcoming for all students, that they're treating sexual violence seriously. And it allowed schools to further kind of sweep sexual harassment under the rug. Just made it really harder for student survivors to get the help they need. And so, the Biden rule restores a lot of protections against sexual harassment and clarifies that these protections would extend to all forms of sex-based harassment or sex discrimination in many cases. So, it's very significant.

Jennie: Yeah. And y'all, if you wanna know more about what the Trump era rules did, Shiwali was on the podcast when they happened, so we'll make sure to include links to those episodes so we don't have to spend time talking about what terrible things they did. We can just focus on the positive because honestly, I could use a little, like, everything's great right now. I know we're also gonna get to some of the things that aren't great, but it's so nice to see these rules change. When do they go into effect?

Shiwali: So, the rules went into effect on August 1st.

Jennie: Yay!

Shiwali: Just recently. Yeah. So it's, it's huge. It's huge. It's a really big deal.

Jennie: You know, all of those things seem so basic, right? Like they just seem so basic, but they're gonna make a huge difference in kids' lives.

Shiwali: Yes, they will. You know, and they're so needed because what we're seeing across the country, and we've been seeing this over the past few years as extremists have become more emboldened in attacking civil rights and attacking the rights of LGBTQI+ people, and especially trans and non-binary and intersex students, is there has been a lot of legislation across the country that are harmful, you know, bans that states have introduced banning students from using the appropriate restroom from playing on the right sports team consistent with their gender identity. Really just bullying of students who are already vulnerable to mistreatment. And so, we need, you know, strong federal regulations and clarity around the broad scope of Title IX. The rules are not creating new protections. Title IX again has always been broad in scope and intent, but this clarification is just so important. And the message that it sends to students is so critical that, you know, no matter these attacks that you're facing, that we as a federal government recognize your humanity and that you deserve to be treated equally like everyone else. And we're gonna make sure that we enforce your rights.

Jennie: I really wish we could end there and be like, yay, they went into effect. Everything's great. Unfortunately, there has been a lot of nonsense happening. Do you wanna maybe talk us through a little bit through the various court cases that are happening?

Shiwali: Yeah. So, we knew that there was going to be challenges. You know, there were groups, states that had threatened it, you know, even before this rule went into effect, before some of- or around the time that some of these lawsuits were filed or even before there were states that were instructing schools like governors not to comply with Title IX. Basically saying, we don't want you to comply with federal civil rights law, like, that's how much we want you to engage in discrimination that harms students. And then we saw, you know, a slew of lawsuits. There were, I think, nine lawsuits consolidated from 10 lawsuits in total. There are 26 states, so more than half of the states.

Jennie: That is wild.

Shiwali: Yeah, it's wild. And, you know, they sued to stop enforcement of the rule. And then there were several individuals and organizations, school districts, and some of these cases, unfortunately, most of the judges who've been appointed to these lawsuits are Trump appointees. You know, so they were very strategic and intentional in the courts that they were targeting to get the outcome that they wanted, which is to not have to implement the rule. And most of these cases, well actually all of them focused on protections for trans and non-binary students, you know, and some also focused on the protections around the clarifications around students who terminate their pregnancies and the types of accommodations they're entitled to. And then some also address the grievance procedures and kind of undoing of the hostile Trump 2020 regs. And unfortunately, they have been successful. There's now an injunction, which means that the court granted a temporary kind of pause for those states in enforcement of the rule against them. It is temporary, you know, these cases are still being litigated. These decisions have come out within the past few weeks. And the DOJ, the Department of Justice, they're like the main litigating arm. They're representing the Department of Ed. And the Title IX rule has sought appeals, and they're trying to, you know, undo what these states have obtained.

Jennie: Yeah. And I think it's worth noting because everything is moving pretty swiftly that we are recording this on August 6th, even though this episode isn't coming out for two weeks, because I'm going to be on vacation. So, just some things may change in the court landscape between now and then, just in case something happens and the things change.

Shiwali: Yeah. Things may change and your vacation should not. So, I'm so glad you're going on vacation, because that is so important, especially in the midst of all of this wackiness that's happening.

Jennie: Yeah. I am very much looking forward to getting away from the heat and just having some quiet time away. But when everybody's hearing this, I will be back. So, it'll be like my second day back in the office.

Shiwali: I was also gonna add that, you know, while these injunctions apply in schools in these 26 states, they're temporary. So, that can be lifted at any point. Some of these lawsuits also involved individuals and organizations. One involved Moms for Liberty and a few other membership or organizations. And in that order, which to me was just wild, when the court granted the injunction, the court extended it to the schools of the children of the members of Moms for Liberty and the members of the other associations, and they provided a list of those individual schools. I think there are probably over 2000, maybe K-12 schools all over the country, schools, even outside of these states that have the injunction. School's in my own state. I'm from Maryland, right? And we don't, we don't have an injunction. And then a lot of colleges and universities, which to me was just like, wow. Like, it is just really broad in scope. You know, one thing that I think is, is so important to stress and that lost in all this is at first, you know, the injunction is not nationwide. There are many, many schools that still have to comply with the rule. And second, even in those places where there is an injunction, it doesn't mean students don't have protections even without these clarifications that LGBTQI+ students are protected under the Title IX regs. LGBTQI+ students still have Title IX rights. You know, courts have recognized that they have rights. There are some courts that have been explicit in recognizing that trans students should be able to use the bathroom that is consistent, their gender identity. Right. And so, you know, I think it's important to know that this is a regulation, this is one source of law, the Title IX rule, but the fact that there is an injunction does not mean that these Title IX rights don't exist.

Jennie: And as you said, this has not been litigated yet, right? This is still working through the courts. So, things can change, hopefully.

Shiwali: Yes, things can absolutely change. An appeals court could swiftly reverse an injunction. There could be a grant of the DOJs request for a partial state, which means that, you know, a request that the entire rule itself should not be enjoined, pending litigation. And so, schools should still be prepared to come into compliance with the rule. They shouldn't expect that they're gonna have a grace period to change all their policies after an injunction is lifted. You know, after the court removes the injunction, they shouldn't expect this grace period. You know, they should expect that the Department of Ed is going to expect that these schools are now in compliance with the Title IX regulations, and by not complying, they're putting their federal funding at risk. And, you know, there's no reason why they shouldn't be, even if there's an injunction, it doesn't mean that they're not allowed to provide strong protections for students under Title IX.

Jennie: This is just one of those things that is so frustrating to me, like, just treat students equally. Like, I don't understand, like, this is just wild to me, that you feel like a school is an okay place to discriminate against somebody. I mean, nowhere is, but like, it's just so frustrating.

Shiwali: It is so frustrating. It's so frustrating. I mean, at the end of the day, this rule, the Biden changes to the Title IX rule are about ensuring that all students can feel safe and welcome in school.

Jennie: Right?

Shiwali: Who doesn't want that? Don't we all want that for kids? Like, we want students to be in the best position possible to feel welcomed and affirmed and successful in their education. And so this is just bullying. Like, it really is. It's really, you know, to come to put all these resources into these lawsuits to have to stop protecting the rights of students, to get away with not having to protect them and to discriminate against them. Like, that's what they're asking to do. That's what they want to be allowed. And I should also clarify from my earlier point about, you know, schools can and still should continue towards implementing the rule, even if there's an injunction. The injunction just stops the Department of Ed from, you know, investigating a school for violating the regs. That doesn't stop the school from implementing the regs. The only kind of wrinkle to that is around the harassment protections, because where there is an injunction around the grievance process or these, you know, changes in the standard for sex-based harassment, the DeVos Trump 2020 rule, unfortunately kicks back in. So, there are some places where schools would then have to revert back to the 2020 rule only when it comes to harassment and grievance procedures for, you know, addressing complaints of sexual harassment.

Jennie: Yeah. And that's important to note with the school you're getting ready to start and especially college campuses.

Shiwali: Yeah. And you know, even under the Trump rule, colleges can still go above and beyond. Campuses can still have sexual harassment policies that are broader than what the Trump rule requires. And we have resources that, you know, I'm happy to share with your listeners, on ways that schools could do that.

Jennie: Okay. So, we started to allude to it, but like, what's next with all of this?

Shiwali: So, you know, with the litigation, we just have to kind of see where it goes in the courts. The rule has gone into effect. Students are returning to campus, they're returning to school soon. And they're, unfortunately, it's kind of patchwork of regulatory protections across the country. It's just where we're at. But on top of the attacks we're seeing in litigation, we're seeing attacks in Congress where there are extremists, there are Republicans in Congress who are also trying to stop the Title IX rule through a tool called the Congressional Review Act, or the CRA for short. And what the CRA allows Congress to do is that within 60 kind of congressional days, so, you know, these are legislative days, they're not calendar days. After a rule is finalized, Congress can vote by a majority, a simple majority to disapprove of a rule. And if there is a voter disapproval that passes in both chambers, again, within those, you know, 60 legislative days, it would go to the president. And, you know, in this case we would expect President Biden to veto it. So ultimately they wouldn't be successful. But a CRA is extremely harmful because if one were to be successful, they would not only be able to undo the regulations, they would stop a future administration from releasing something that's substantially similar. So, when you think about how broad in scope this Title IX rule is, all the protections to all the different communities of students it offers...a CRA would prevent any sort of similar rule from being enacted in the future.

Jennie: Well, I don't think I knew that second part. Like I think I only knew the first part and not that it couldn't be done again.

Shiwali: Yeah, yeah. It's very drastic. Wow. It's so drastic. And the house voted to disapprove of the Title IX regs. They had their CRA vote, it was along party lines. The Senate has not yet voted. I think, you know, we're expecting that to happen after their August recess, so maybe September at some point. And, you know, even if we expect Biden to veto it, it still could be harmful to future litigation if there is any sort of indication that Congress did not intend for Title IX to have these types of, you know, broad protections and clarifications. So, we do wanna make sure that the Senate does not vote to pass the CRA, we just don't want there to be arguments later on that would undermine Title IX because of the way Congress voted on the Congressional Review Act.

Jennie: Yeah, 'cause I can only guess that this will probably, maybe work its way up to the Supreme Court at some point and, like, a CRA vote would be really harmful.

Shiwali: Yeah. It doesn't help. You know, there's, there's just something that often courts look to when they're trying to understand if something is, you know, within the scope of the law or a statute is congressional intent. So, there are different ways that they can determine, you know, what was Congress's intent around Title IX here. And that's something that has been debated or the litigation and these lawsuits are bringing up that, you know, Congress didn't intend for Title IX to do this or that. That's a lot of the arguments. So, you know, it's one reason why we have to make sure that they're not successful in passing the CRA.

Jennie: Oh man, that was so much. Okay. So, I always like to wrap up focusing on: what can the audience do? So, what can our audience do right now with all of this?

Shiwali: There are a few things. Since I just talked about the CRA, I'll start with that. With the CRA, you can call your senator. It's as simple as that. And that can be really effective and urge them to oppose the Congressional Review Act resolution on Title IX, on the Title IX regulations. That is a simple thing to do. And the National Women's Law Center has an action page for that to help facilitate that for anyone who would like to take that action. The other is, you know, and I said this earlier, that it's important for there to be clarity that these injunctions on the Title IX rule do not mean that Title IX protections don't exist. And so, I think it's so important that we all—students, administrators, families, anyone—really pushes back against the notion that Title IX is tubeless or that there are no protections because there are, and there are still things that students could do, that school employees can do, that community members could do to push schools to do the right thing and to implement the rule, to work towards implementation, to have clear protections against sex discrimination despite there being an injunction.

Jennie: Yeah, I really like the idea of this doesn't mean you need to stop there. Like, you can go and do the right thing and implement the policy even if there is an injunction.

Shiwali: Yeah, absolutely. Again, you know, with the harassment pieces, there's a little bit of a more nuance there, but yeah, schools are not, you know, the injunction does not mean that they're prohibited from providing these protections and having explicit policies. It just ties the hands of the Department of Ed and does not allow the Department of Ed to enforce the Title IX regulations against these schools.

Jennie: Shiwali, thank you so much for being here. It was so much fun talking to you about all the things happening around Title IX.

Shiwali: Absolutely. It's so nice to, you know, reconnect. Although the circumstances aren't great, but you know, partly like we still have this awesome rule and it is still making a difference.

Jennie: Yes.

Shiwali: And I'm hopeful. I think a lot of people have been fighting and we're continuing to fight and you know, I believe it will lead to positive outcomes.

Jennie: Okay, y'all, I hope you enjoyed my conversation with Shiwali. I had a great time talking to her about Title IX and I'm so excited about this new rule. Like it really, it is great. And so, I'm focusing on that part and trying not to think about the injunction in 26 states, blocking it from going into effect. Yeah. Yeah. Let's just focus on the win. And with that, I will talk to y'all next week. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprofightback.com. Thanks all!