Lawyers prepare for new ‒ and old ‒ Title IX challenges

Editor’s Note: At press time, a federal judge in Kentucky struck down the new rules, finding that the Department of Education had overstepped its authority by expanding the scope of Title IX.

By Kallie Cox

With President-elect Donald Trump preparing to begin his second term, lawyers say the future of the Biden administration Title IX reforms is up in the air.

The reforms expanded the definition of discrimination based on sex to include sexual orientation and gender identity. Shortly after they were introduced earlier this year, 20 states sued the Biden administration, successfully enjoining the changes pending a resolution.

Attorneys say they are unsure what the new administration will mean for the reforms, but most don’t see a world in which the reforms survive.

Biden era

Lindsay K. Bunting Eubanks, a lawyer with Sands Anderson in Virginia, expects incoming Trump to pull back the 2024 rules and return to his own education policy from 2020.

That won’t result in much change for Virginia, as the Biden-era rules have already been enjoined and have not taken effect.

Andrew Duncan, an attorney with Cohen & Duncan in Kansas and Missouri, said the incoming administration has clearly signaled it will repeal the 2024 reforms, including the expanded definition of discrimination and how institutions are required to investigate complaints of sexual harassment and misconduct.

“My expectation is that they will, at least with regard to the second issue, probably try to revert to the final rule that the DeVos-era Department of Education put in place in August of 2020,” Duncan said.

He said the legal landscape likely won’t change much in Kansas and Missouri where the rule implementing the reforms has been blocked by the courts.

Ashley N. Higginson, a Miller Canfield attorney in Michigan, is hopeful that attorneys will have some clarity on Title IX under Trump given that it is likely he will revert to the 2020 rules.

“There’s still a question that exists [as] the injunctions really surround a more particular issue, which is that of sexual identity and orientation in the definition of sex under Title IX,” Higginson said. “The Supreme Court has in recent history ruled that the Title VII definition of sex includes sexual orientation and gender identity. The question of law here remains as to whether Title IX was intended to be read the same as Title VII or not.”

What the rollback of the reforms will mean for LGBTQ+ youth remains unclear, she said.

“Title VII and many state discrimination laws still require a prohibition on discrimination on the basis of sex, including gender identity and sexual orientation, and these laws are not absent from education spaces,” Higginson said. “In that way, while Title IX may or may not encompass that definition to be more broad, or more specifically include those protected categories into the definition at some point, there are still protections under other laws in supporting individuals on their protected statuses of orientation or identity. So, I don’t think all is lost with that change and I think, in large part, schools still have the ability to make some determinations as to how they will write their own policies in their school spaces.”

The question of gender identity and sexual orientation has received more attention in athletics, and Higginson anticipates the intensity surrounding those discussions to continue.

The Trump future

Ruth O’Meara-Costello, a Massachusetts attorney with her own practice, anticipates some of the most significant changes in the Title IX space to be the return to Trump-era requirements for Title IX investigations, most notably around the requirement for live hearings and cross-examination.

However, like most rule-making changes to Title IX policy, even the reversion to an old rule could take a long time. Both Biden and Trump took years to enact their desired changes. Still, the constant changes and reversals of policy are creating a legal minefield for educational institutions.

“Schools [and] universities are being put in a very difficult position, and have been for years, by the kind of back and forth in the regulations,” O’Meara-Costello said. “It’s a constant scramble to be on top of what the law is as interpreted by a new administration every few years, as well as, of course, the litigation around whether the courts agree that that’s what the law is. And that’s only going to get worse.”

Duncan, who represents defendants in Title IX cases, is optimistic about the possible return of cross-examination requirements, which he said will become a central part of his practice.

“It gives the decision-maker a better sense as to what actually happened here. Cross-examination is extremely effective in my view [in terms of] getting to the heart of any kind of factual dispute,” he said. “Without that kind of live cross-examination, I don’t think that these hearings are as effective in trying to figure out exactly what happened here and just telling the truth, essentially.”

One difference from the first Trump administration is that the U.S. Supreme Court recently overturned the Chevron doctrine, Bunting Eubanks noted.

“What both Biden and Trump have put together in the Title IX regulations might not actually be as pivotal in enforcing those regulations as it was the last time Trump was elected because of this overturn of the Chevron doctrine and the fact that all agency regulations now are a little bit more tenuous and not quite as enforceable as they were before,” Bunting Eubanks said.

With the Chevron doctrine overturned, a lengthy rule-making process, enjoined Biden-era reforms, and the possible abolition of the Department of Education, attorneys say it’s hard to predict Title IX’s future.

“Title IX has been in place for longer than I’ve been alive, so I think there’s a certain longevity to that,” Bunting Eubanks said. “And yes, we are arguing about the scope of its application, but I definitely don’t think it’s going to disappear overnight just because of a new administration. Any arguments we can make that go to the plain text of the statute and the intent of the people who wrote those words, that’s probably going to be our strongest stance as attorneys and as people trying to carry out and follow this law.”