Roundtable #25 | The Pitfalls and Resilience of Title IX Over Time

Section I : Resistance to Title IX Cases: Balancing Justice, Accountability, and Survivor Protections

In recent years, the interpretation of Title IX has shifted from being assessed through the statute's text to being shaped by the priorities and motivations of the current administration. Despite differing approaches, one constant remains: Title IX, as it stands currently, is at a major crossroads, with legal scholars deeply divided on how to address its challenges and shape its future. One such challenge is data collection. Organizations like the Rape, Abuse & Incest National Network (RAINN) and the Association of American Universities (AAU) have conducted surveys regarding the prevalence and perception of sexual misconduct on college campuses; yet, until recently, laws mandating campus climate surveys were not instituted on a federal level, with inconsistencies across states. The 2022 omnibus spending bill now requires all U.S. campuses to complete a survey by 2024. However, the Higher Education Sexual Misconduct and Awareness Survey (HESMA), born from this effort, has faced criticism for its small, unrepresentative sample. Accurate data is essential, as S. Daniel Carter, the president of Safety Advisors for Educational (SAFE) Campuses, states, “Without hard data, you can’t know how to effectively target and respond to problems.”

Unfortunately, it seems that attempts to make institutions more transparent about the frequency and severity of sex crimes on their campus have only backfired. During the Obama administration, The Violence Against Women Act went into effect, which amended the Clery Act (1990 Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act) by requiring schools to not only report statistics pertaining to forcible and nonforcible sex offenses, but also to report statistics pertaining to sexual assault, dating, and domestic violence, and stalking incidents. While these laws have certainly had positive effects (the Violence Against Women Act, for instance, mandated that institutions provide students with “primary prevention and awareness programs” and “ongoing prevention and awareness campaigns”), an unintended consequence of increasing accountability for these institutions is they are disincentivized from increasing reporting as it may cause reputational damage and increased liability. As Title IX scholar Nancy Cantalupo has pointed out, “the schools that are ignoring the problem have fewer reports and look more safe, whereas the schools that encourage victim reporting have more reports and look less safe.” To put it simply, the more that schools ignore sexual assault, the better they look to everyone else.

While the Obama administration made significant gains in Title IX protections, under the Trump administration, the ability to report sexual assault on campus became much harder, said Kel O’Hara, senior counsel for Equality Rights Advocates. For instance, the definition of sexual harassment or violence became more restrictive, making it more difficult for survivors to file claims. Arguably the largest change that the Trump administration made to Title IX policy, however, was the requirement for Title IX cases to permit a live hearing with in-person cross-examination and impartial decision makers for all sexual harassment complaints. This was a very controversial policy change for several reasons.

First, victims’ rights advocates argue that while cross-examination is an effective tool in most criminal trials, research shows that this is not the case in situations where the witness has suffered a severe trauma. A litany of studies show that sexual assault victims, when cross-examined, essentially “relive” their trauma, experiencing hyperarousal and emotional flooding as they face their assailants. This may make them seem less credible even if they are telling the truth, endangering the integrity of the court's decision.

Second, legal precedent shows a long-standing hesitancy from courts to impose due process procedures in schools, as to not disrupt their primary role of educating students. In Goss v. Lopez, for instance, while the Supreme Court granted the defendant due process rights for being “suspended without hearing prior to suspension”, the Court also cautioned, “impos[ing] in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness”. Jaksa v. Regents of University of Michigan echoed this sentiment, warning institutions of the harms of imposing a quasi-criminal courtroom process on school disciplinary proceeding: “a full-dress judicial hearing, with the right to cross-examine witnesses,...might be detrimental to the college's educational atmosphere and impractical to carry out.”

In 2022, Biden attempted to roll back the Title IX changes put in place by Trump through the Biden Administration’s Notice of Proposed Rulemaking (NPRM) and made the significant change of moving the live hearing process from mandatory to permissive. However, there is still a long way to go, as the NPRM also supported continuing a number of quasi-courtroom procedures for complaints of sexual assault where an informal resolution (e.g. mediation) was not agreed upon. Unfortunately, the emphasis of procedural due process has coincided with an increase of defamation suits against the accusers by the accused. This is not an uncommon practice: A survey by Know Your IX, a survivor legal advocacy group, found that 23 percent of student survivors who reported their assaults said either the person they accused of assault or that person’s attorney threatened to sue them for defamation. What’s worse is that small procedural mistakes can cause victims to lose their chance at getting justice: for instance, in June of 2023, the Connecticut Supreme Court in Khan v. Doe ruled 7-0 that former Yale student Jane Doe could be sued for defamation by her assailant, Saifullah Khan. Khan made the argument that he was not able to directly cross-examine Doe, and consequently, her allegations didn’t qualify for legal immunity against defamation suits (while survivors are granted immunity against defamation claims for allegations made in criminal prosecutions, the Connecticut court ruled that no such immunity applies to a survivor’s Title IX accusations).

Khan v. Doe is already becoming an archetype for other alleged abusers to follow suit; just months after the Khan decision came out, the Colorado Court of Appeals applied the same reasoning to another Title IX case, this time involving students in high school. In this case, Gonzales v. Hushen, Benjamin Gonzales, a student at Evergreen High School in Jefferson, Colorado, claimed his right to sue his alleged victims for defamation because Evergreen’s Title IX process didn’t allow for in-person cross-examination. The court found the Title IX investigation lacked the procedural protections needed to qualify as quasi-judicial, resulting in a similar decision to the Khan case.

This trend of the accused suing their accusers reveals a startling shift in the legal landscape surrounding Title IX. Cases like Khan v. Doe and Gonzales v. Hushen demonstrate the complex challenges in balancing fairness for the accused with protections for survivors; however, it’s crucial for courts to acknowledge that in-person cross-examination hinders the establishment of an accurate factual record, often doing more harm than good. While it’s important for the accused to be tried fairly, it is equally important for survivors of sexual misconduct to be treated with care, sensitivity, and respect in the courtroom. For Title IX to accomplish what it was meant for—helping victims first and foremost—courts must adopt trauma-informed practices that uphold justice without exacerbating existing harms.

By Dasha Smirnova

Section II: Tracking Changes to Title IX Regarding Transgender Students Over the Past Three Administrations

The inclusion of transgender students under Title IX projections has become a polarizing topic both inside and outside of courts. In order to understand the current landscape, it is important to track the judicial responses to executive legislation as tensions between administrations, states, schools, and students ramp up.

One of the earliest challenges to an expansion in Title IX in regards to transgender students had to do with restroom facilities in public schools. In 2016, in the lawsuit, State of Texas V. United States, 11 states filed suit to block the Obama administration’s recent changes to its guidance policies regarding the civil rights of transgender students in public schools, claiming that the new policies were too broad in scope and interpretation. This suit followed the recent directive from the Department of Education and Justice Department’s Dear Colleague Letter directly expanding Title IX to state that a school cannot treat transgender students differently from cisgender students. Any school that did not comply with the new protocols could be denied funding. Legal experts, including James Esseks, an American Civil Union Lawyer and Co-Director of the ACLU Gay Bisexual Queer & HIV Project, and Carl Tobias, a law professor at the University of Richmond, believed this suit to be a political stunt that served to push the issue closer to the Supreme Court. In 2017, less than a year after the suit was filed and months after changes to the Dear Colleague Letter released in 2016, the suit was voluntarily dismissed.

In February 2017, a Dear Colleague letter stated that the Department of Justice and the Department of Education were rescinding statements of policy and guidance reflected in the 2015 Letter to Emily Prince from James A. Ferg-Cadima and the 2016 Dear Colleague Letter on Transgender Students. The 2017 letter stated these guidance documents which took the position that Title IX required access to “sex-segretated facilities based on gender identity” but do not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” The ambiguities in this letter led  the Department of Education and Department of Justice to withdraw their documents. Soon after, in May 2017, the Supreme Court decided in Gloucester County School Board v. G.G. to remand the case back to the US Court of Appeals for the 4th Circuit in light of the aforementioned guidance document released earlier that year. In this case, G.G., an alias for a transgender student at Gloucester High School dealing with gender dysphoria obtained permission to use the boys’ restroom at school. After complaints from county residents, the Gloucester High County School Board mandated that transgender students were allowed access to single-stall unisex restrooms or restrooms that correspond with the students’ sex assigned at birth. Because of the new guidance letter that repealed the 2015 letter allowing students to use restrooms consistent with their gender identity, the Supreme Court sent the case back to the Court of Appeals. However, Gavin Grimm kept fighting past the vacated Supreme Court judgment and, in 2020, the U.S. Court of Appeals for the Fourth Circuit affirmed the ruling in favor of Gavin, and in 2021 the Supreme Court denied the school board’s petition for a writ of certiorari.

In April of 2024, the Biden administration released a new overhaul of Title IX, attempting to undo many of the actions by the previous administration. These proposed changes mainly focused on altering how colleges and universities are to respond to reports of sexual harassment and assault, as well as expanding protections for LGBTG+ students and pregnant students. More specifically, these new rules were to broaden the definition of sexual harrassment from “severe, pervasive and objectively offensive” to “sufficiently severe or pervasive,” while expanding Title IX sex discrimination protection to include discrimination based on sexual orientation, gender identity, and parental status. Finally, the rules would reintroduce the single-investigator model when it comes to investigating those accused of sexual misconduct while not requiring cross-examination. These Title IX changes were met with challenges from the conservative-leaning Supreme Court. Attorneys from 26 states immediately challenged the proposed additions to Title IX, being particularly against the new provisions targeting discrimination against transgender people, winning several injunctions that prevent the Education Department from enforcing the new regulations in those states. When the Biden administration requested that the Supreme Court allow them to temporarily enforce their new provisions, the Supreme Court denied the application for a partial stay in a close 5-4 decision in August of 2024. The unsigned majority opinion states that the Government didn’t have sufficient basis to overturn the lower courts opinions, while Justice Sotomayor, in the dissent joined by Justice Kagan, Gorsuch, and Jackson, maintained that the injunctions ought to be overturned.

The nature of rapidly changing law makes the future of the interpretation of Title IX in regards to transgender students hard to predict. This volatility is connected to current policies and current administrations. The issue is also politically charged that many suits seem not to be made in an attempt to win a case, but to bring an issue to the public consciousness. This is nothing new in American politics, but the legal ramifications lead to uncertainty in the school-wide consequences of interpreting Title IX and expanding on it. The general path, on the national level, seems to be moving toward including transgender students in a more broader sense in Title IX policies, but due to the volatility this could change in the blink of an eye.

By Leena Mehta

Section III: Navigating the Legal Maze of Transgender Athletes Across Competition Levels

On June 23rd, 1972, Title IX was signed by President Nixon. Title IX prohibits sex discrimination in any educational program or activity receiving federal financial aid. This was seen as major progress towards gender equality, especially in sports. Since its passage in 1972, the number of girls participating in sports has increased each year. Recently, there have been questions on whether Title IX extends to other groups. In early 2024, President Biden released new provisions of Title IX that protect LGBTQ+ students against discrimination on the basis of their sexual orientation. Notably absent though were any provisions for transgender athletes. Policies on transgender athletes drastically vary from state to state. This issue is particularly salient for those who transitioned from male to female and wish to compete in female sports as concerns often arise regarding fitness advantages gained during periods of higher testosterone levels. Transgender athletes can be legally banned at the high school and professional levels but should be allowed to compete in the National Collegiate Athletic Association (NCAA) since they are classified as employees. Compared to high school sports which are amateur and professional sports which are private, the NCAA receives federal funding. There are several legal provisions that apply to federal employees, so highlighting that connection could provide a precedent that transgenders can compete in the NCAA.

Although Title IX is aimed at combating sex discrimination in federally funded institutions, there are exceptions that legalize restrictions on transgender athletes. There have been multiple court cases on transgender bathroom usage in schools. The Eleventh Circuit Court ruled that separating bathrooms does not violate Title IX because the bill allows for the separation of facilities on the basis of biological sex. Similar Title IX exceptions exist in sports. Title IX permits separation by sex in physical education classes involving contact sports. It also permits schools to separate male and female athletic teams when sex-based selection criteria are based on competitive skill. A transgender athlete who has transitioned to female may have additional “competitive skills” linked to testosterone prior to their transition.. In Soule ex rel. Stanescu v. Connecticut Association of Schools, Inc., cisgender athlete plaintiffs are now challenging Connecticut’s inclusive student-athlete policy, which allows transgender women to compete. The plaintiffs argued that allowing a transgender athlete to compete unfairly discriminated against girls and therefore violated Title IX. The Second Circuit has not yet ruled on the merits of the athlete’s Title IX case. Since there has not been a clear federal ruling, states can ban transgender athletes, as it follows Title IX’s provision allowing the separation of males and females based on competitive skill. Whether they are required to or not will vary based on state court decisions.

The 2020 Bostock v. Clayton County decision could set a precedent with Title IX that allows transgenders to compete in the NCAA. In the ongoing Gaines v. NCAA case, several swimmers headlined by Riley Gaines are suing the NCAA over allowing transgender swimmer Lia Thomas to compete. Thomas previously swam for the Penn men’s swimming team before making the transition to female. She then tied with Gaines for 5th at the 2022 NCAA championships. The NCAA currently permits transgender athletes on a sport-by-sport basis that aligns with the Olympics. The policy in place when Thomas transitioned required transgender athletes to undergo one year of testosterone suppression and document their levels before competing in championships. The NCAA revised its policy in 2022, shortly after legal cases started being filed against Thomas. The new policy requires the submission of testosterone levels before the season starts. Plaintiff Gaines argues that the NCAA should ban all transgender women from competing. There is strong evidence within Title IX to support this, as the gains transgender women made through their heightened testosterone would constitute an unfair advantage to biological women. However, Bostock v. Clayton County can use Title VII to switch the leverage back to transgender athletes. Title VII came from the Civil Rights Act of 1964 that prevented employers from discriminating because of an individual’s race, color, religion, sex, or national origin. Bostock ruled that Title VII bans employment discrimination on the basis of sexual orientation. Bostock is about Title VII, but its precedent can apply to Title IX. Although the US Department of Justice alludes to this, there have not yet been decisions in federal courts that used the Bostock precedent for transgender athletes.

Another potential Bostock pathway allowing transgender athletes to compete is through legal complications with the new NCAA’s implementation of paid salaries. In the House v. NCAA settlement, Judge Wilkins gave preliminary approval for the NCAA to directly pay student-athletes starting in 2025. The NCAA was inclined to do this because they risked facing more significant financial repercussions through antitrust lawsuits like House v. NCAA. However with these new salaries, it becomes unclear whether the student-athletes can now be classified as employees. The Johnson v. NCAA decision by the Third Circuit allows college athletes to claim wages, opening the door for the Fair Labor Standards Act (FLSA) to apply. Thus, student-athletes are entitled to the same rights that all other employees get. This now directly relates to the Bostock decision since discrimination on the basis of sex is illegal.

Since professional sports have employment, it would imply that transgenders should be able to compete. However, private leagues such as the NFL, MLB, and Olympics are not required to follow Title IX because they don’t receive federal funding. Transgender athletes may have an avenue of suing through Title VII’s employment and Bostock, but not through Title IX’s sex discrimination clause. As a result, Lia Thomas was unable to compete for an Olympic berth because World Aquatics banned transgender women who have undergone male puberty from competing.

Title IX can be interpreted to both support and oppose transgenders from competing in sport. It can allow transgender athletes to compete on the basis of sex discrimination or can exclude them to protect an even playing field for biological women. This murky middle ground will continue to be decided by courts, resulting in varying laws depending on the location, type of sport, and level of athletics.

By Uma Rajan

Edited by Jaaziel Olayinka