San Diego Union-Tribune

EDUCATION DEPT. PITCHES TITLE IX CHANGES

Protection­s for trans students, abuse survivors proposed

- BY ERICA L. GREEN

The Biden administra­tion on Thursday proposed new rules governing how schools must respond to sex discrimina­tion, rolling back major parts of a Trump administra­tion policy that narrowed the scope of campus sexual misconduct investigat­ions and cementing the rights of transgende­r students into law.

The proposal would overhaul expansive rules finalized under former Education Secretary Betsy DeVos, which for the first time codified how universiti­es, colleges and K-12 schools investigat­e sexual assault and harassment on campus. It would also broaden the roster of who is protected under Title IX, the federal law signed 50 years ago Thursday that bars discrimina­tion based on sex in education programs or activities that receive federal funds.

“It is the Department of Education’s responsibi­lity to ensure all our students can learn, grow and thrive in

school no matter where they live, who they are, whom they love or how they identify,” Education Secretary Miguel Cardona told reporters Thursday morning.

The proposal is certain to set up a clash with conservati­ve state and federal lawmakers and draw legal action from conservati­ve groups that had already begun railing against the department’s position, issued

last year, that transgende­r students were protected under Title IX. That announceme­nt was based on a 2020 Supreme Court ruling that found that protection­s in the Civil Rights Act against discrimina­tion in the workplace extended to gay and transgende­r people.

Civil liberties groups also anticipate legal challenges over issues of free speech and due process should the

department drop certain provisions of the Trump administra­tion rule that mirrored legal precedent establishe­d by the Supreme Court and lower courts.

The department said it would issue a separate regulation on how Title IX applies to athletics, including what criteria schools can use “to establish students’ eligibilit­y to participat­e on a particular male or female athletic team.”

The Trump administra­tion rules, issued in 2020, narrowed the definition of sexual harassment, expanded the due process rights of students accused of harassment and assault, relieved schools of certain legal liabilitie­s, and required schools to hold courtoom-like proceeding­s called “live hearings” that allowed cross-examinatio­n of the parties involved. Those rules did not define “sex-based harassment,” per se, and the administra­tion had taken the position that Title IX did not extend protection­s to those facing discrimina­tion based on gender identity.

The proposed rules will go through a lengthy public comment period before they are made final and take effect.

The rules proposed Thursday were widely viewed as a victory for critics of the Trump-era rules, particular­ly by advocates for sexual assault survivors, who had assailed the Trump administra­tion rules as too stringent and potentiall­y traumatizi­ng or obstructiv­e for victims.

The proposal expands the definition of what constitute­s sexual harassment and the types of episodes that schools are obligated to address and investigat­e — to include, for example, incidents that took place off campus or abroad, as well as incidents that create a “hostile environmen­t.” The new rules would also roll back the most controvers­ial of DeVos’ rules and make live hearings and cross-examinatio­n optional.

The Biden proposal to define sex-based discrimina­tion and harassment to include “stereotype­s, sex characteri­stics, pregnancy or related conditions, sexual orientatio­n, and gender identity” is likely to become the bigger lightning rod.

On Thursday, 17 state attorneys general, led by Austin Knudsen of Montana and Todd Rokita of Indiana, sent a letter to Cardona vowing to fight “proposed changes to Title IX with every available tool in our arsenal.”

Such protection­s would make more explicit schools’ responsibi­lities to transgende­r students, settling ongoing debates about their right to use bathrooms marked for the gender they identify with; dress the way they prefer; be referred to by their preferred pronouns; and be protected from gender-based bullying.

 ?? CHRISTOPHE­R LEE NYT ?? The Biden administra­tion on Thursday proposed revisions to Title IX that would cement the rights of transgende­r students
CHRISTOPHE­R LEE NYT The Biden administra­tion on Thursday proposed revisions to Title IX that would cement the rights of transgende­r students

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