The Future of Title IX

As we celebrate Title IX’s first 50 years, I am reminded of how broad the scope is of this law that prohibits sex discrimination in federally funded education. This was always true of Title IX in the abstract, but the last 50 years have witnessed that breadth repeatedly become a reality as activists, advocates, and attorneys have invoked and applied Title IX to dismantle particular inequalities among the many that unfortunately permeate U.S. education.

Yet over these 50 years, most people who have even heard of Title IX thought its scope very narrow, even as that narrow meaning shifted from one specific area of inequality to another. The common perception in its early decades was that Title IX was limited to equal athletic opportunities for girls and women in school. This perception shifted about 15 years ago, as student survivor activists began relying on Title IX to demand protection from campus sexual assault. By 2015, its applicability to sexual harassment and gender-based violence came to dominate public discussions of the statute. Today, with transgender students at the center of various culture wars, I wonder if Title IX will soon be seen as being “about” transgender rights.

The reality is that Title IX can be applied to all of these inequalities but also to many, many more. It can be used to prevent and remedy intersectional discrimination based on, for example, gender and race, or gender and disability, or all three. It can protect women staff and faculty from discrimination in hiring, promotion, and equal pay, as well as from retaliation when they assert their or others’ Title IX rights. It has been used to address and remedy discrimination against pregnant or parenting students. And if the last 50 years are any judge, this list will continue to grow into the future.

This wide scope also applies to Title IX’s beneficiaries, who include all those who have experienced, are experiencing, and may experience gender discrimination while participating in a federally funded educational program (which means, as a practical matter, almost all of U.S. education). With the pervasiveness of gender discrimination in education, this group is potentially enormous, including even those who wouldn’t normally be perceived as vulnerable to gender discrimination, such as cisgender boys and men, whom Title IX protects, for instance, from same-sex bullying.

The shifting sands of public (mis)perceptions of Title IX’s focus also obscure Title IX’s impacts on gender equality outside of education. One example is the U.S. women’s soccer team’s dominance at the World Cup, rightly attributed to the opportunities, support, and resources that Title IX mandated schools provide to girls’ and women’s athletics (one statistic: From 1972 to 1991, U.S. high schools experienced a 17,000% increase in girls playing soccer). With this unparalleled winning record, and with the expectation of equality fostered by Title IX, team members demanded and won equal pay, potentially benefitting a much larger group than just themselves. Here, not only did Title IX ensure those athletes’ rights to equal opportunities to develop their athletic talents and abilities at school, it also laid the groundwork for those athletes to challenge gender inequality outside of education.

In the particular slice of Title IX that I know best (using Title IX to combat sexual harassment and gender-based violence), we can see a similar example. Title IX is one of the rare places — possibly the only place — in U.S. law where gender-based violence has been widely recognized as not only a violation of criminal law, but also a violation of civil rights law. This acceptance is a product of student sexual harassment and gender-based violence survivors’ insistence that their schools prevent and remedy such abuse by understanding and addressing it as a cause and a consequence of gender and other inequalities (as they intersect with gender inequality). These activists’ persistence over more than a decade has not only given U.S. education what has become a national civil rights movement of students and allies organized around Title IX, it has modeled strategies — such as using social media — that are linked to other, similar civil rights movements like the #MeToo Movement.

Finally, we can see Title IX’s breadth in the Title IX Movement’s plans for the future, many of which combine traditional civil rights perspectives with interventions developed outside civil rights legal contexts. For instance, because the years when Betsy DeVos was running the Department of Education were ones of particularly intense backlash against not only Title IX but civil rights generally, they spurred a new level of understanding regarding how intersectional sexual harassment and gender-based violence are. Along with those insights, activists realized that future efforts to address such discrimination must be equally intersectional and done in coalition with those engaged in other civil rights and related struggles, including those against systemic racism, economic inequality, anti-immigrant xenophobia, gun violence, and more.

Movement activists working to combat sexual harassment and gender-based violence are also looking to comprehensive prevention methods developed in the public health field, ones that informed the Recommendations for Improving Campus Student Conduct Processes for Gender-Based Violence that I helped the American Bar Association’s Commission on Domestic and Sexual Violence to write. Mentioned in those recommendations — and developed in much greater detail through a class action settlement related to serial sexual harassment by now-deceased University of Michigan physician Robert Anderson — is another highly effective comprehensive prevention strategy: coordinated community response teams or CCRTs. CCRTs are organized and collaborative groups of those in any particular community who have a stake in that community’s comprehensive prevention needs, goals, and plans. On campuses, these stakeholders can include everyone from survivors themselves to women’s and gender studies faculty whose research focuses on gender-based violence to attorneys in the university counsel’s office to professionals in the campus victims advocacy office.

The most recent development looks to social science research for additional strategies to achieve Title IX’s goals. The Consolidated Appropriations Act of 2022, which was signed into law in March, resuscitates provisions that I helped to write in 2014 mandating nationally standardized and publicly disclosed climate surveys that measure the prevalence of sexual harassment and gender-based violence campus by campus. Such surveys give prospective and current students, faculty, and staff across the country the ability to correct existing counterintuitive incentives that encourage schools to passively and actively suppress victim reporting, to everyone’s detriment. Current campus crime disclosure requirements require schools to publish statistics regarding gender-based violence that victims or third parties have reported to the school. However, because campus sexual harassment and gender-based violence are massively underreported, these statistics say nothing about how much harassment and violence is actually occurring on a particular campus. More disturbingly, because putting resources into prevention will probably encourage more victims to report, at least in the short-term, schools that do more to protect their students look more dangerous than schools that are doing nothing. Mandatory, nationally standardized, and publicly disclosed climate surveys measure actual prevalence rates, independent of reporting, and thus allow for accuratecomparisons of schools’ success at harassment/violence prevention. They also help schools assess their prevention methods so as to continually improve them, information that can once again also improve prevention efforts outside of education.

Title IX’s breadth makes it difficult to predict in which new directions it might go, but its potential is nearly endless. With regard to ending the discrimination that is sexual harassment and gender-based violence, however, such information as the climate surveys will gather, particularly in the hands of the Title IX Movement, stands to make Title IX an even more powerful tool for dismantling inequality during the next 50 years than it was in the last 50.