The Biden Administration Is Dragging Its Feet on Transgender-Focused Title IX Overhaul. Here's Why.

Long-awaited Title IX rule changes may eliminate due process protections, open women's spaces to biological men

A dean shows off a transgender bathroom in his high school (Mark Ralston/AFP via Getty Images)
May 27, 2022

Popular opposition may be delaying the Biden Education Department's push to expand Title IX protections to transgender Americans, experts say.

A spokesman told the Washington Free Beacon that the department plans to release updated Title IX rules in June, after twice delaying the rollout. The rule change is expected to erase Trump-era due process protections for sexual misconduct investigations on college campuses. But it could also allow transgender individuals to access sex-segregated spaces, like bathrooms. Title IX stakeholders believe the unpopularity of the latter provision could explain the arrested rollout.

"The administration may be looking at the polls showing that Americans overwhelmingly do not support this radical redefinition of a law meant to provide basic civil rights protections to women and girls in educational institutions," Independent Women's Forum senior policy analyst Inez Stepman told the Free Beacon. "This delay is an attempt to evade political responsibility for their unpopular policies."

The delay could pose a political problem for the Biden administration. President Joe Biden promised during the 2020 campaign to bring to a "quick end" to the Trump-era rules. Critics say those rules prolonged investigations into sexual misconduct and delayed case resolutions. A coalition of activist groups has pressed Secretary of Education Miguel Cardona to expedite the department's Title IX overhaul.

As of this writing, the proposed rule changes are still under review by the Office of Management and Budget. Sarah Parshall Perry, who served under former president Donald Trump in the Education Department's Office for Civil Rights, said the extended review process is a "hopeful sign" that the office is pushing the Education Department for more information on the rule change, or else has "sent the Department back to the drawing board."

Candice Jackson, another Trump Education Department alum, suggests that the delay could be political, with the White House "looking ahead to the fall election … and wanting to bury this Title IX explosion under other news."

But a June release could suggest the opposite. In addition to being LGBT Pride Month, this June marks the 50th anniversary of Title IX. Expanding Title IX to cover transgender people in June would fit the Biden administration's pattern of pegging policy to politically advantageous dates. The president demanded that all American troops be pulled out of Afghanistan before the 20th anniversary of the 9/11 terror attacks. The White House announced "Independence from COVID" on July 4, 2021. And Biden this week signed an executive order on police reform to mark the second anniversary of George Floyd's death.

The department's refusal to publicize its delay shows the administration's fear of being held accountable for postponing a change that Biden promised to bring early in his time in office, Perry said.

"The fact that Politico broke the story that the new Title IX is once again being delayed, rather than the Department of Education publicizing that delay itself, indicates to me that they're not keen to be held accountable for the delay," said Perry, now a legal fellow at the Heritage Foundation.

A second period of public comment will come after the Education Department announces its rules. The department will then have a final opportunity to edit the rules before submitting the final change in the Federal Register.