“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” Cardona said on a press call Thursday morning. “So we decided to do a separate rulemaking on how schools may determine eligibility while upholding Title IX’s nondiscrimination guarantee.

While the department did not give any indication on when the rule on sports might be expected, Cardona said, “I firmly reject efforts to politicize these protections and sow division in our schools.”

The long-awaited Biden administration proposal lands the same day Title IX, the federal education law that prohibits sex-based discrimination, turns 50. It unravels much of former Education Secretary Betsy DeVos’ Title IX rule, a defining aspect of her tenure. Her rule, which took effect in August 2020, narrowed the definition of sexual harassment and directed schools to conduct live hearings with cross-examination for sexual misconduct investigations.

Cardona’s rule no longer requires live hearings for Title IX investigations and reverts the definition of sexual harassment back to “unwelcome sex-based conduct that creates a hostile environment by denying or limiting” a person’s ability to participate in a school’s education program or activity. The DeVos rule currently only prohibits unwelcome sex-based misconduct if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

While the DeVos rule on sexual misconduct was hotly contested, Cardona’s attention to transgender rights is likely to face some blowback. Cardona’s rule won’t take effect for several months, until the regulatory process runs its course.

The department’s proposed Title IX rule will be open for public comment for 60 days from the date of publication in the Federal Register.

Protections for vulnerable students

Along with codifying protections for transgender students for the first time, the Education Department’s proposal clarifies that schools must protect parenting and pregnant students and employees from discrimination. This means schools must have “reasonable modifications for students, reasonable break time for employees for lactation and lactation space for both students and employees.”

If a student is pregnant, the school must offer them information on how to contact the Title IX coordinator for help. Then, the coordinator would have to ensure the student receives modifications to help them go to school. Students would also be allowed to take a voluntary leave of absence for medical reasons and must be reinstated upon return.

Under the new rule, schools that receive federal funds may be expected to protect transgender students from discrimination by allowing them to use bathrooms that match their gender identity and be addressed by their pronouns. Despite sports not being included in the proposal, the administration’s focus on protecting transgender students is still likely to take heat. And the rule lays the groundwork for future rulemaking related to sports.

“Preventing any person from participating in an education program or activity consistent with their gender identity would subject them to more than de minimis harm on the basis of sex and therefore be prohibited, unless otherwise permitted by Title IX or the regulations,” the rule states.

However, depending on the outcome of the midterms, the longer it takes the Education Department to finalize Cardona’s Title IX rule and issue direction on transgender students’ access to sports, the more time a potential GOP majority in Congress would have to use the Congressional Review Act. The CRA gives lawmakers 60 legislative days to overturn major rules once they’re issued by federal agencies.

Transgender women have been allowed to compete in women’s sports in the Olympics since 2003. The NCAA recently updated its policy on the participation of transgender athletes this year, giving the national governing body for each sport its own ability to determine eligibility requirements.

But Republicans in Congress have attempted to force a vote on a bill that would ban transgender athletes from playing on women’s sports teams and they’ve unveiled a resolution that aims to define what “sex” is through a “Women’s Bill of Rights.” Neither initiative has garnered Democratic support.

One leader of the resolution, Rep. Debbie Lesko (R-Ariz.), has said she hoped a Republican Congress would use the CRA on Cardona’s rule. “It’s very important that we protect women and girls’ rights,” she said in an interview. “I think that goes across party lines and people just think it’s gone too far.”

Responding to reports of sexual misconduct

Several advocacy groups representing students who have experienced sexual misconduct have been urging the Biden administration to immediately get rid of DeVos’ rule, saying it has weakens protections for survivors. The rule, they argue, has deterred students from reporting incidents because of its narrow definition of sexual harassment.

Organizations representing students accused of sexual misconduct, however, have pressed the administration to keep the safeguards the DeVos rule included to require that every student received a fair investigation.

More key changes in Cardona’s proposed rule include requiring schools to respond to reports of misconduct that happens off campus, including if it happens outside an educational program or outside of the U.S. And schools must respond to any possible misconduct, not just when it has “actual knowledge” of the harassment.

The Title IX grievance process would no longer be as prescriptive as it is under the DeVos rule. A Title IX coordinator would have to “offer and coordinate supportive measures, as appropriate, to the complainant and respondent.” Those measures could include counseling, contact restrictions between the parties and “voluntary or involuntary changes in class, work or housing.”

A Title IX coordinator, in response to a complaint, must initiate the grievance procedures or informal resolution process. Unlike the DeVos rule, the coordinator may now also be the decision-maker, though the rule specifies that they must maintain a “presumption that the respondent is not responsible until a determination is made at the conclusion of the grievance procedures.”

There are no specific timelines for how long a grievance process should occur, and the burden is on the school to gather evidence, though they can use a “preponderance of the evidence standard.”

How the proposed rule is being received

Several education and civil rights groups lauded the administration’s proposal that protects students against sexual orientation and gender identity discrimination.

“This rule is an important step forward, but we also need the Senate to pass the Equality Act to enshrine federal nondiscrimination protections into law and for school districts across the country to invest in mental health resources and implement LGBTQ-inclusive policies,” said Amit Paley, CEO of The Trevor Project, a nonprofit that advocates for LGBTQ youth.

But groups advocating for students who have faced sexual misconduct are urging the Education Department to take immediate action to protect these students and not waiting until the regulations are finalized.

“The department should act right now to protect students by issuing a non-enforcement directive of dangerous provisions of the current rule that perpetuate harm towards survivors,” said Kenyora Parham, executive director of End Rape On Campus. “Students and survivors, especially those from historically excluded and marginalized communities, not only deserve but have a right to receive an education that is free from violence.”

On Capitol Hill, Sen. Richard Burr, the Senate HELP Committee’s top Republican, rebuked the proposal saying it “threatens students’ Constitutional right to due process and the core American value of justice for all.” Burr, along with several other GOP lawmakers had pressed Education Department officials to maintain the DeVos-era Title IX grievance process.

“The existing rule struck a balance that follows the law and is fair to both parties,” Burr said.