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{shortcode-a0fafb3727a5405eac46bd1741f1eafab86bbf7e}arvard will keep its policy protections against sexual misconduct based on gender identity and sexual orientation, despite the Department of Education’s recent announcement that it will do away with the Biden administration’s mandated protections for LGBTQ+ students.
The University’s current sexual harassment policies consists of two policies: the Interim Title IX Sexual Harassment Policy and the Interim Other Sexual Misconduct Policy. The former complies with federal and state laws — including the Department of Education’s directives — while the latter includes University regulations outside the scope of federal legislation.
The Department of Education sent a Jan. 31 “Dear Colleague” letter to universities across the country clarifying that educational institutions must abide by the Title IX regulations from Trump’s first term. This officially renders the Biden administration’s Title IX rules, which prohibit discrimination and harassment on the basis of gender identity and sexual orientation, obsolete.
Biden’s Title IX regulations faced several hurdles, including a July 2024 injunction from a Kansas District Court and legal challenges in 25 other states. A Kentucky federal judge ultimately struck down the changes on Jan. 9.
According to Nicole M. Merhill, the University Title IX Coordinator and Director of the Office for Gender Equity, Harvard spent the past summer working to update their existing policies in accordance with Biden’s rules. The revisions, however, were never implemented.
“It should be no shock that the Department of Education issued the ‘Dear Colleague letter,” Susan C. Stone, a Title IX attorney, said. “It should also be noted that many schools around the country never changed the regulations to conform with the Biden regulations.”
“So from our perspective, not much changed,” she added.
In accordance with the letter, the University will continue to hold live hearings with cross-examination conducted by the complainant and respondent’s personal advisors — a process which some have called disadvantageous and re-traumatizing for victims.
Keith Altman, an attorney specializing in Title IX and student defense, said the Biden administration’s attempt to do away with the requirement for live hearings with cross-examination “was a substantial degradation” that “fortunately has been done away with.”
David J. Grimaldi, a defense attorney in Boston who has experience defending students in sexual misconduct cases, said that live hearings with cross-examination “can reveal important aspects of a complainant’s allegation that are important for decision makers to understand.”
“That said, there should always be resources available to complainants of sexual assault, and nothing about this process should discourage people who wish to make a claim of sexual assault from making that claim,” Grimaldi added.
Unlike the University’s procedure to evaluate complaints that fall under Title IX, complainants and respondents under the Other Sexual Misconduct Policy are subject to interviews with an investigative team but are not evaluated with a live hearing or cross-examination.
But the policies were not completely unaltered. Harvard changed its definition of sexual harassment in one of its policies — the Interim Title IX Sexual Harassment Policy — to abide by Trump’s Jan. 20 executive order that denies recognition of gender identity.
In compliance with the order, “harassment based on sexual orientation and/or gender identity” has been removed from the definition of sexual harassment in the University’s Interim Title IX Sexual Harassment policy.
But harassment based on sexual orientation and gender identity will continue to be prohibited by the Interim Other Sexual Misconduct Policy, as indicated by a footnote added to the Title IX policy on Feb. 4.
Grimaldi said it is important for transgender students to be aware of “other policies under which they can seek relief.”
“At many schools, there will be other policies that might capture the conduct that the new Title IX regulations under President Trump do not capture,” Grimaldi said.
Harvard adopted its Interim Other Sexual Misconduct Policy in Aug. 2020, which effectively protects students against harassment that does not fall under the jurisdiction of Trump-era Title IX policies. The University’s two-policy structure allows for the protection of University affiliates against harassment based on gender identity and sexual orientation, while also complying with federal law.
Rosie P. Couture ’26, a member of the Harvard Feminist Coalition, called the University’s two-policy structure “messy” and “frustrating.”
“Even if it seems like, ‘Oh, another policy is going to overlap and protect,’ I think any indication that Harvard is going to fold in and cave in to the demands of the Trump administration is scary and frightening and an act of injustice,” Couture said.
Merhill wrote in a statement the “Interim Other Sexual Misconduct policy maintains protections for our community that are consistent with other laws and policies, including Massachusetts state law.”
Ruth K. O’Meara-Costello ’02, a private practice attorney based in Cambridge who has experience litigating in Title IX and student conduct, said that the Title IX regulations are a “floor” and “not a ceiling.”
“Schools have to forbid discrimination based on sex under Title IX. If they want to also forbid discrimination based on sexual orientation, I think they can do that,” O’Meara-Costello said.
O’Meara-Costello said universities “have to comply” with the Trump administration’s regulations because, if they don’t, “they risk losing federal funding.”
The University is currently facing cuts to funding from the National Institutes of Health for indirect research expenses, though the plan has been temporarily blocked in court. The Trump administration is locked in other legal battles over its attempts to ax funding for diversity initiatives and international aid.
“This is an administration that is hostile to higher education and perfectly likely to try to pull funding if given an excuse to do that,” O’Meara-Costello added.
The University’s procedures for evaluating and investigating sexual harassment complaints also remain unchanged, according to Merhill.
While Harvard’s policies continue to protect LGBTQ students from harassment, the Department of Education’s letter comes during a period filled with executive orders targeted at higher education institutions to curb diversity, equity, and inclusion programs and ban transgender students from competing in women's sports.
“This is a presidential administration that I think is unlike anything that I’ve seen in my lifetime. They’re clearly very against anything that they term to be DEI,” O’Meara-Costello said. “I don’t feel like I could totally predict even what kinds of steps they might try to take to prevent private colleges from guaranteeing their students freedom from discrimination.”
“I think this is the beginning of a really dark time for the United States, and it could be a very dark time for Harvard too, if Harvard doesn’t stand up and protect its students,” Couture said.
—Staff writer Annabel M. Yu can be reached at annabel.yu@thecrimson.com. Follow her on X @annabelmyu.
