EDUCATION DEPT. PITCHES TITLE IX CHANGES
Protections for trans students, abuse survivors proposed
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.