The United States Department of Education (DOE) issued a Dear Colleague Letter on January 31, 2025. This Letter announced that the DOE will enforce the 2020 Title IX regulations as promulgated under President Trump’s first term. This Letter comes after President Trump signed an executive order requiring all federal executive agencies to only recognize two sexes, male and female. Below is a discussion of what this switch back to the 2020 rule entails.
2020 Rule is Effective Immediately
This immediate return to the 2020 Rule comes after the Eastern District Court of Kentucky issued an order that vacated the entirety of Biden’s 2024 Title IX Rule. Prior to this decision, federal courts across the country blocked the 2024 Rule, resulting in 26 states prohibiting its enforcement. In response to the negative treatment of the 2024 Rule, the DOE has decided that ongoing Title IX investigations that were initiated under the 2024 Rule should be re-evaluated under the 2020 Rule.
Narrowed Definitions
The 2020 Rule defines “sexual harassment” as conduct that is severe, pervasive, and so objectively offensive that it has the effect of denying an individual equal access to a school’s programs or activities. The 2020 Rule does not interpret Title IX’s prohibition of discrimination “on the basis of sex” to include discrimination based on sexual orientation, gender identity, or sex characteristics. This is because the 2020 regulation defines “sex” as the biological attributes assigned at birth, thereby limiting protections to biological sex.
Evidence Standard
Institutions may choose between a “preponderance of the evidence” or a “clear and convincing evidence” standard. Under the “preponderance” standard, the evidence must show that it is more likely than not that a violation occurred. Under the “clear and convincing” standard, the evidence must show that it is highly and substantially more likely that a violation occurred. Whichever standard is chosen, the institution must apply it consistently across all cases.
Formal Grievance Process
To initiate the grievance process, a formal complaint alleging sexual harassment must be made. This can include a statement written by the complainant or a document signed by a Title IX coordinator. A written notice of any investigation, interview, meeting, or hearing must be provided to the parties. Prior to a hearing, both parties should also receive an investigative report that summarizes the relevant evidence in the complaint.
Post-secondary educational institutions have an additional obligation. These institutions are required to include live hearings in their formal grievance process. At these live hearings, cross-examinations may be conducted directly, orally, and in real time by a party’s representative or advisor. Cross-examination cannot be conducted by the complainant or the accused themselves.
Takeaway
The DOE’s reinstatement of the 2020 Title IX regulations marks a significant shift back to narrower definitions of sex discrimination and heightened due process protections for accused students. With the exclusion of gender identity and sexual orientation from Title IX protections and the reintroduction of live hearings with cross-examinations, schools that receive federal funding are urged to revise their policies to comply with the Trump-era framework.