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Biden’s New Title IX Rule is the Beginning of the End for Free Speech

Compelling speech at universities is the first step toward Canada-style speech codes.

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Credit: Wikimedia Commons

The Biden administration just released its 1500-page revision of the Title IX Rule. This new Rule makes this administration’s primary goal glaringly obvious: to cram Neo-Marxist gender ideology down the throats of every American and punish any resistance. That’s why they are weaponizing Title IX to compel speech. 

Despite the fact that expressing and debating views and ideas is fundamental to the American system, my organization, Speech First, has found that many universities prefer to shut down speech, punish students for merely asking questions or stating basic facts, and enforce a dogmatic approach towards all political speech. At the same time, they embed their preferred political speech in all aspects of student life.


Similarly, the Biden administration does not want to wait for the end result of the traditional American way—debate and discourse that seeks truth through reason, and ultimately settles on a conclusion based on core constitutional principles. Instead, the administration is attempting to bend the country to its will by turning Title IX against the Constitution.

Title IX was passed by Congress in 1972 to close gaps in the Civil Rights Act of 1964, which did not provide protections for discrimination on the basis of sex in education. Since then, various lawsuits expanded or reworked definitions of “sex” and “discrimination.” Sexual harassment and sexual assault were eventually included to be forms of sex-discrimination. As the years went on, many presidential administrations sought to further define these terms.

The Obama administration issued a series of “Dear Colleague Letters,” policy directives from the Department of Education to colleges and universities. These circumvented the rule-making process to prioritize political goals over the rights of American citizens. Instead of going through the multi-year slog of hearing what legal experts and citizens of the country might think about a new Title IX Rule, the Obama administration just short-circuited the system.

The Trump administration, on the other hand, went through the formal rule-making process with the intentions of thoroughly auditing Title IX and building in important protections for constitutional rights. Under Trump, a very important speech protection was added to Title IX: the Davis standard. 

This speech protection was not written by the administration; it came from a U.S. Supreme Court decision, Davis v. The Monroe County Board of Education. This Supreme Court precedent specifically stated that for speech to be considered harassing conduct, it has to be so severe, pervasive, and objectively offensive that it effectively denies students equal access to education. 


What this means is that if a student wanted to report another student or a professor for a Title IX sexual harassment violation, it couldn’t be for a “microaggression,” nor could it be for any of the numerous and often ridiculous speech code limitations that universities have embedded in their own non-Title IX harassment policies. 

These days, universities punish students for committing “microaggressions,” not using “preferred pronouns,” using “offensive language,” “stereotyping,” or mean jokes. You may or may not believe these rise to the level of Title IX sexual harassment or sex discrimination, but they are all forms of constitutionally protected speech. 

But that didn’t stop universities from attempting to discipline students for their protected speech. In Speech First v. Cartwright, the Eleventh Circuit Court recognized how the University of Central Florida was abusing its discriminatory-harassment policy to target students’ constitutionally protected speech. 

The Davis standard is a possible solution for a harassment policy that protects students’ First Amendment speech rights while simultaneously protecting students from actual sex-based discrimination. This would also ensure that Title IX offices don’t get bogged down by frivolous or malicious reports that would inevitably bury and delay action on more serious cases.

When the Biden administration came in, its members sought to take much of what Obama listed in his “Dear Colleague” letters and march it through the formal rule-making process. This includes brazen expansions of the definition of sex. The new Rule broadens the definition of “sex” and states that discrimination on the basis of sex will also include discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” In other words, you can no longer express your opinions on transgender ideology, the LGBTQ+ community, or abortion without getting reported for a Title IX violation. 

Section 106.2 redefines “sex-based harassment,” throwing out the aforementioned Davis standard that placed a high bar as to what kind of speech can be considered harassing conduct, and replaced it with language that is vague, overbroad, and actually uses the word “subjective” in the definition itself. A law cannot be subjective and applied fairly at the same time. 

The Biden Title IX Rule states that sex-based harassment must be “based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”

Here, the Biden administration changes “severe, pervasive, and objectively offensive” to “severe or pervasive.” Along with the inclusion of gender identity as a protected class, this means not using someone’s preferred pronoun is a reportable Title IX offense. This is compelled speech, and it is unconstitutional.

Further, the speech only has to “limit a person’s ability to benefit from….” Unlike the previous Rule’s “effectively denies a person equal access…” phrasing, this means anyone can file a Title IX claim, even when they have equal access to education, if they merely feel they cannot enjoy their class because, for example, a fellow student asked about Title IX compelling the use of gender affirmation language. 

Other countries like Canada already have similar laws regarding the use of pronouns. They now send their citizens to jail if they do not use the language the government demands of them. Biden’s Title IX Rule is the first step in that direction—the beginning of the end of free speech in America.