The Current State of Title IX: Instability, Challenges, and the Impact on Survivors

By: Kalaya Hudziec-Leiva, I Have The Right To Intern

The current state of Title IX is characterized by significant regulatory instability following decades of political shifts. As of November 2025, educational institutions are operating under the 2020 Title IX regulations, established during President Trump’s first term in office under Education Secretary Betsy DeVos. This reversion occurred following a federal court decision on January 9, 2025, that vacated the Biden administration’s 2024 Title IX regulations nationwide.

What is Title IX?

Title IX of the Education Amendments of 1972 is a landmark federal civil rights law that prohibits sex-based discrimination in any educational program or activity that receives federal financial assistance. The law’s straightforward mandate states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 

Establishing Sexual Harassment and Assault as Sex Discrimination

Alexander v. Yale University, 459 F. Supp. 1 (D. Conn. 1977) was the first instance where Title IX was used to establish that sexual harassment constitutes sex discrimination in education. In 1992, the U.S. Supreme Court, in Franklin v. Gwinett Public Schools, held that students could seek monetary damages for a violation of Title IX. A few years later, in 1999, the court expanded their interpretation of Title IX by ruling in Davis v. Monroe County Board of Education that Title IX covers sexual harassment by students as well as staff.  However, despite these rulings, many schools were not enforcing Title IX and failed to have proper procedures in place to adequately respond to sexual violence and protect survivors who came forward.

In response to advocates and students demanding that schools take Title IX seriously,the United States Department of Education (DOE) Office for Civil Rights (OCR) under the Obama administration issued the 2011 Dear Colleague Letter (DCL) and mandated sexual violence complaint procedures, encouraged the enhancement of reporting mechanisms, and increased prevention education. The administration followed up with additional guidance, such as the 2014 Q&A which explained the responsibility to take immediate and effective action with “prompt, thorough, and impartial” investigations using the preponderance of the evidence standard.. 

A study from 2007-2016 of Massachusetts colleges and universities showed a notable uptick in reporting after the DCL’s distribution in 2011, accompanied by a resulting increase in investigations. Another study using Clery Act data from over three thousand institutions found a 350% increase in reporting post-DCL dissemination. The Clery Act requires Institutions of Higher Education to report campus crime data, publicly outline safety policies and procedures, and support victims of violence. The presence of a designated sole Title IX administrator, whose primary responsibility is overseeing investigations of claims, saw more than double the number of reported cases post-2011 DCL, suggesting increased student trust and clearer policy communication.  

However, the trajectory of Title IX changed drastically during Trump’s first presidential term (2017-2021) when the administration rescinded the Obama-era guidance that informed Title IX practices, including the DCL of 2011 and the 2014 Q&A  guidance. In the years since, educational institutions, students, and survivors have experienced a destabilizing cycle of changing rules, resulting in inconsistent implementation and a weakening of campus protections for survivors. 

Ongoing Challenges to Title IX Interpretation and Implementation 

Inconsistency,Administrative Discretion, and the Weakening of OCR 

Inconsistencies in due process remain a significant challenge, often treated as requirements limited to the hearing phase rather than applied throughout the entire investigative process. For example, between 2017 and 2020, protections for survivors related to sexual harassment and assault were rolled back, while additional rights were granted to accused students.

Since taking office for a second term, Trump has again called for the dismantling of the Education Department. Recently, Education Secretary Linda McMahon has launched a public campaign supporting Trump’s demands, arguing on social media that DOE’s grantmaking and question-answering functions could be better handled by states and other federal agencies. The dismantling and restructuring of the DOE raises serious concerns for vulnerable students who depend on consistent federal support. 

Even more troubling is the weakened capacity for civil rights enforcement: mass layoffs have left OCR understaffed and struggling with a growing backlog of discrimination complaints. In the past, when students felt their educational institution was not following Title IX, they had the option to file a complaint with OCR which was tasked with investigating and enforcing. This option’s viability continues to weaken. While officials insist that funding will continue to flow, the fragmentation of responsibilities across multiple agencies and lack of transparency threatens the coordinated oversight and protections that students rely on.

The Expansion and Retrenchment of Title IX  Gender Identity and Sexual Orientation Policies 

The Biden administration (2021-2025) specifically reinvigorated protections for LGBTQ+ students, sexual assault survivors, and pregnancy discrimination. In April 2024, the administration finalized a new Title IX rule that expanded the definition of sex discrimination to include gender identity and sexual orientation, and widened the scope of what counts as harassment.

Civil rights advocates praised these changes by showing that they provided LGBTQ+ students with clearer avenues for addressing discrimination and required schools to allow students and employees to access facilities and programs consistent with their gender identity. The rule also revised sexual misconduct procedures by removing the Trump-era requirement for mandatory live hearings with cross-examination, making such hearings optional. However, the 2024 rule quickly faced legal resistance as conservative states challenged the expanded definition of sex discrimination.

After January 2025, a federal judge struck down the Biden administration’s 2024 Title IX regulations nationwide, ruling that the DOE exceeded its authority by extending Title IX protections to gender identity, sexual orientation, and sex stereotypes. The court also held that the 2024 rule violated First Amendment rights by compelling teachers to use students’ chosen pronouns, leading to the complete vacatur of the regulation and the reinstatement of the 2020 rules. Following the ruling, the OCR confirmed that all ongoing investigations must now comply with the 2020 standards.

In President Trump’s second term, the administration moved quickly to secure this restrictive interpretation of Title IX, issuing Executive Order 14168, which directs federal agencies to define sex solely as an immutable biological category and bars the use of federal funds to support “gender ideology.” Although broader regulatory changes will take time, these actions signal a firm commitment to a biologically based interpretation of sex under federal law.

Cross-examination requirements
Protections for the accused were further entrenched through the 2020 Title IX Rule issued under former Education Secretary Betsy DeVos, which mandated live disciplinary hearings and permitted advisors to cross-examine complainants. The new rule requires schools to use a two-step process, an investigation followed by a live hearing, meaning that survivors must share their stories multiple times, including in front of a decision-maker and under cross-examination by the respondent’s advisor. This process forces survivors to relive their assault in an adversarial setting where their credibility is actively challenged. While many, many schools had moved away from hearings because survivors reported they were traumatizing and adversarial, the rule now makes them mandatory, but gives schools flexibility in how they are carried out. The hearing format can be intimidating, invasive, and re-traumatizing for survivors, especially during cross-examination. 

Another significant procedural change under the 2020 Title IX Rule was the elimination of a uniform evidentiary standard. Prior guidance had required schools to use the preponderance of the evidence standard, the same standard applied in most civil rights cases, when adjudicating Title IX complaints. The 2020 regulations instead permitted institutions to choose between the preponderance of the evidence standard and the higher clear and convincing evidence standard, so long as the chosen standard is applied consistently across student and employee cases and clearly articulated in institutional policy. This shift marked a meaningful departure from longstanding civil rights enforcement norms and raised concerns among advocates that allowing a heightened evidentiary threshold could make it more difficult for survivors to obtain accountability through campus processes.

While schools could choose to reduce harm by limiting inappropriate questioning, maintaining the preponderance of the evidence standard, training decision-makers in trauma-informed practices, increasing transparency, and defining consent clearly, many choose not to or feel restrained from doing so. Ultimately, the impact on survivors now depends less on Title IX requirements and more on how thoughtfully schools design and implement their procedures and protections, leading to a great deal of variation from school to school.

Narrowing the definition of sexual harassment and its implications on ongoing and future Title IX cases

In the 2024 Title IX, the DOE explained that in evaluating whether specific conduct would meet the definition of hostile environment, sex-based harassment would be based on the totality of the circumstances. This means that for sex-based conduct to meet the “severe or pervasive” standard that limited the individual’s ability to participate in education and activities, the case depended on the type, frequency, and duration of the conduct. These factors, they determined, would help guide decision-makers in their evaluation of the “severity and pervasiveness” of the conduct. For survivors, this framework is restraining because of the high threshold of proof that may feel burdensome, the adversarial process can be re-traumatizing, institutions may downplay single incidents of harm, and there is limited support for the survivor if the assault isn’t “proven.” This system makes it harder for survivors to come forward, harder to stay engaged in the process, and harder to feel protected. 

 The 2020 rule also narrowed the meaning of sexual harassment and limited schools’ liability by adopting a “deliberate indifference” standard while grounding enforcement in a biological definition of sex. The regulations require that sexual harassment be “severe and pervasive” to rise to the level of a Title IX violation, a significantly higher bar than the “severe or pervasive” standard in the 2024 rules.

Legal and Enforcement Changes Limit Survivor Recourse

In 2022, the U.S. Supreme Court’s decision in Cummings v. Premier Rehab Keller, P.L.L.C. significantly narrowed the avenues available for survivors seeking accountability under Title IX. The Court held that compensatory damages for emotional distress are no longer recoverable in private Title IX actions. As a result, survivors of sexual harassment and assault are now barred from recovering damages for the very injuries most commonly caused by Title IX violations. Lower courts have since applied this precedent, including a 2023 Massachusetts federal district court decision in Doe v. Town of North Andover, which dismissed claims for emotional distress damages. While survivors may still pursue injunctive relief, equitable remedies, and certain forms of economic damages such as tuition reimbursement, these options rarely offer meaningful redress on their own.

At the same time, survivors face a parallel erosion of administrative enforcement. OCR, which used to serve as a critical avenue for students seeking to challenge institutional noncompliance with Title IX, has seen its capacity significantly reduced due to office closures, staffing cuts, and mounting backlogs. Together, the narrowing of civil remedies and the weakening of federal oversight make it substantially harder for survivors to seek justice when their schools fail to protect them and comply with Title IX. With fewer damages available in court and diminished access to effective OCR enforcement, survivors are left with limited and often inadequate paths to hold institutions accountable, undermining both individual rights and the broader enforcement of Title IX protections.

Systemic Underreporting and Lack of Trust

Research suggests that 72-95% of incidents go underreported on college campuses. An interpretation of this fact is that many universities have not established a culture or climate where students feel comfortable coming forward. Students often graduate without knowing who their Title IX coordinator was, and even among students aware of available resources, many do not trust them. Recent changes to Title IX rules and the weakening of federal enforcement have only compounded these challenges, requiring even institutions that previously prioritized survivor support to revise their procedures. Schools must now navigate a shifting legal landscape while attempting to maintain compliance, often resulting in policies that prioritize procedural protections for the accused over fostering a supportive environment for reporting students. A national survey found that only half of students believed their college would conduct a fair investigation, with a lower percentage among female and transgender students. 

Final Thoughts

The path towards equality under Title IX remains an ongoing challenge. While progress is achieved in bursts, such as the increased reporting following clear federal guidance, the race is hindered by internal challenges like inconsistent resource allocation and administrative inefficiencies, as well as external resistance that shifts the finish line through law and policy changes and political maneuvering. 

The return to the 2020 Title IX Rule places significant burdens on survivors, making strong advocacy more essential than ever. Additionally, the ongoing threat of dismantling the DOE jeopardizes survivors’ access to justice. Without a centralized agency to enforce civil rights, monitor compliance, and hold schools accountable, survivors risk being left in a fragmented system where protections are inconsistent, complaints stall, and sexual assault is easier to ignore than address.

 Ensuring procedural fairness and a supportive environment, despite mandatory live hearings, narrowed definitions of harassment, and the exclusion of gender identity from federal protections, requires institutions to go beyond minimal federal standards. By strengthening supportive measures, embracing broader state-level protections, and upholding inclusive policies, schools can help safeguard the rights and well-being of all students in a rapidly shifting legal landscape. Continuing to advocate for survivors and policies that are survivor-centric is a crucial action. 

Bibliography  

ATIXA. “Evaluating Pervasiveness.” ATIXA. Accessed November 26, 2025. https://www.atixa.org/open-center/evaluating-pervasiveness/. 

Atkins, Lisa Karen, and Karen Baillie. “U.S. Department of Education Confirms That It Will Enforce 2020 Title IX Rule.” Ogletree, February 2, 2025. https://ogletree.com/insights-resources/blog-posts/u-s-department-of-education-confirms-that-it-will-enforce-2020-title-ix-rule/. 

Bedera, Nicole, Seth Galanter, and Sage Carson. “A New Title IX Rule Essentially Allows Accused Sexual Assailants to Hide Evidence against Them.” Time, August 14, 2020. https://time.com/5879262/devos-title-ix-rule/. 

Binkley, Collin, and Annie Ma. “The Education Department Is Being Dismantled. Here’s What That Means.” AP News, November 19, 2025. https://apnews.com/article/trump-education-department-dismantle-close-b0ae8b677a63273a9b06c2b4005dee4d. 

Binkley, Collin. “Judge Tosses Biden’s Title IX Rules, Rejecting Expansion of Protections for LGBTQ+ Students.” PBS, January 9, 2025. https://www.pbs.org/newshour/politics/judge-tosses-bidens-title-ix-rules-rejecting-expansion-of-protections-for-lgbtq-students.  

Binkley, Collin. “US Colleges Returning to Campus Sexual Assault Rules Created during Trump’s First Term.” AP News, January 31, 2025. https://apnews.com/article/title-ix-trump-lgbtq-sex-assault-b7b6ad1cbe28331ce38ef896e6d4fd2.  Cameron, Justine A., and Nikolay Anguelov. “A Review of Title IX and the Impact of the ‘Dear Colleague’ Letter on Sexual Assault Reporting Policies: Evidence from Massachusetts.” Journal of Public Affairs Education, June 11, 2025, 1–22. https://doi.org/10.1080/15236803.2025.2514331. 

Ransdell, Lynda B. “Title IX as a Social Justice Issue: Unpacking Its Successes and Challenges.” Kinesiology Review, 2025, 1–9. https://doi.org/10.1123/kr.2025-0048. 

Perrin, Ruth. “Finding Areas for Hope in the New Title IX Regulations.” Volare, March 19, 2025. https://www.volare-empowers.org/blog/opwa7eb2lgn5ssykqds4s9loxsywdg. 

Sweeney, Kristen. “The Clery Act.” Clery Center, 2025. https://www.clerycenter.org/the-clery-act.  

“Title IX and Sex Discrimination.” U.S. Department of Education. https://www.ed.gov/laws-and-policy/civil-rights-laws/title-ix-and-sex-discrimination. 

“Trump Administration’s Title IX Changes Revert Regulations Back to 2020, and Further Changes Are Possible.” Hunton Andrews Kurth LLP, 2025. https://www.hunton.com/insights/legal/trump-administrations-title-ix-changes-revert-regulations-back-to-2020-and-further-changes-are-possible.  

“U.S. District Judge Issues Nationwide Vacatur of 2024 Title IX Regulations While Additional Changes to Title IX Are Expected under the Incoming Presidential Administration.” Atkinson, Andelson, Loya, Ruud & Romo, 2025. https://www.aalrr.com/newsroom-alerts-4101.