WASHINGTON — The Biden administration on Thursday proposed new rules governing how schools should respond to gender discrimination, reversed key parts of the Trump administration’s policies that narrowed the scope of investigations into sexual misconduct on campus and protected rights of transgender students laid down in law.
The proposal would revise extensive rules finalized under former secretary of education Betsy DeVos, who first codified how universities, colleges and K-12 schools investigate sexual assault and harassment on campus. It would also broaden the list of who is protected under Title IX, the federal law signed 50 years ago Thursday that prohibits gender discrimination in education programs or activities that receive federal funds.
“It is the responsibility of the Department of Education to ensure that all our students can learn, grow and thrive in school, regardless of where they live, who they are, who they love or how they identify themselves,” said the Minister of Education. Teach Miguel A. Cardona to reporters on Thursday morning.
The proposal is sure to spark a clash with conservative state and federal lawmakers, drawing legal action from conservative groups that have already started protesting the department’s stance, issued last year, that transgender students were protected under Title IX. That announcement was based on a 2020 Supreme Court ruling that found that the Civil Rights Act’s protections against discrimination in the workplace extended to gay and transgender people.
Civil liberties groups are also anticipating legal challenges over issues of free speech and due process, should the department drop certain provisions of the Trump administration rule that mirror the legal precedent set 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 determine whether students are eligible to participate in a particular male or female athletic team.”
The Trump administration’s rules, enacted in 2020, narrowed the definition of sexual harassment, expanded the rights to a fair trial of students charged with harassment and assault, relieved schools of certain legal liability, and required schools to conduct courtroom-like procedures. called “live hearings.” which allowed for cross-examination of the parties involved. Those rules did not necessarily define “sex-based harassment,” and the government had taken the position that Title IX did not protect those who faced discrimination based on gender identity.
A fact sheet distributed by the Biden administration said the new rules were intended to “restore vital protections for students in our country’s schools, which had been eroded by controversial regulations introduced during the previous administration.” It also said the Trump rules “weakened protections for survivors of sexual assault and diminished the promise of an education without discrimination.”
The proposed rules will go through a lengthy public comment period before they become final and take effect.
Mr. Biden, who helped draft controversial Obama-era guidelines on how schools should investigate sexual assault and harassment that Ms. DeVos later scrapped, was one of the most vocal critics of the DeVos rules. As a candidate, he promised to put a “quick end” to them if elected.
The newly proposed rules were informed by a wide range of stakeholder input over a year and a half, officials said, including a nationwide virtual public hearing. They largely fall back on the Obama-era approach; Mr. Obama’s administration never made formal rules on the matter, but issued guidance documents in 2011 and 2014 that sought to capture the entire universe of sexual harassment claims and remedies and the department’s enforcement powers.
Critics of the Obama-era guidelines, including college leaders, have said schools felt pressured to side with prosecutors without granting adequate rights to the accused. Since then, dozens of students have won lawsuits against their colleges for violating their right to a fair trial.
About being transgender in America
The rules proposed Thursday were widely regarded as a victory for critics of the Trump-era rules, particularly by advocates of sexual assault survivors, who had attacked the Trump rules as being too strict and potentially traumatizing or hindering. victims.
Emma Grasso Levine, manager of Know Your IX, a youth-led victims’ rights group, said in a statement that the organization continued to see survivors “experience punishment, retaliation and being pushed out of school because of the anti-survivor 2020 regulations. ”
“It cannot be emphasized enough how much student survivors need these changes to Title IX rules to ensure fair grievance procedures and to ensure that survivors’ education is not further interrupted by the effects of sexual assault,” she said.
The proposal expands the definition of what constitutes sexual harassment, and the types of episodes that schools are required to address and investigate, to include, for example, incidents that have occurred off-campus or abroad, as well as incidents that create a “hostile environment” . † The new rules would also roll back Ms. DeVos’ most controversial rules, making live hearings and cross-examination optional rather than mandatory.
The proposal retains aspects of Ms. DeVos’ rules — which prompted more than 120,000 public comments and unsuccessful legal challenges — that emphasize the presumption of innocence, fair and impartial investigations, and equitable rights of accused and prosecutors.
Still, the proposal has “flaws that put it on a collision course with the courts,” said Joe Cohn, the legislative and policy director at the Foundation for Individual Rights and Expression, an impartial civil liberties group.
Mr Cohn said the government’s backtracking on live hearings and cross-examinations, as well as the deviation from the Supreme Court’s definition of sexual harassment used by Ms. DeVos, ignores free speech and due process rulings in which such measures have already been found essential to Title IX case discussions. The rule also reinstates a “single-detective” model that courts have found problematic, he said, with one person acting as judge and jury.
“This rule pretends that case law doesn’t exist,” said Mr Cohn. “They have to make major overhauls if they want the regulations to last.”
The proposal, predictably, divided congressional lawmakers along partisan lines. Senator Richard M. Burr, a North Carolina Republican and the highest-ranking member of the Senate Education Committee, said the proposed amendment makes it clear “the government is placing charges of guilt over fair consideration of the evidence.”
Senator Patty Murray, a Washington Democrat and chair of the Senate Education Committee, called the proposal “a world of change from the backward DeVos rule, which made it easier for schools to brush aside bullying and violence, and harder for survivors to get to. go ahead, seek justice and feel safe on campus.”
Biden’s proposal to define gender-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 Mr. Cardona pledging to “apply proposed changes to Title IX with every available tool in our arsenal.” to fight.
Such protections would make schools’ responsibilities towards transgender students more explicit, and settle ongoing discussions about their right to use toilets marked for the gender they identify with; dress as they please; are referred to by their favorite pronouns; and be protected from gender-based bullying.
They would also help to dampen the growing efforts to eradicate the existence of LGBTQ youth across the country, said Jennifer Pizer, acting chief of legal affairs for Lambda Legal, one of the country’s oldest civil rights organizations. represents the LGBTQ community.
“It’s an immeasurable step forward,” she said, adding that “clear, strong statements of support with concrete action steps needed from the federal government couldn’t be more timely.”
The rules come as a debate over transgender student participation on sports teams in state houses and school boards across the country. In recent years, Republican-dominated lawmakers in at least 18 states have introduced restrictions on transgender participation in public school sports, and at least a dozen states have passed laws with some restrictions. On June 19, FINA, the world governing body of swimming, essentially banned transgender women from participating in the highest levels of international women’s competition.
And conservative groups have denounced the Biden administration’s efforts to enshrine gender identity protections in several agencies as the government undermines the rights Title IX sought to promote.
“Fifty years of protecting women and girls at school is about to be wiped out as the Biden administration embraces gender ideology over basic human biology,” Kevin Roberts, the chairman of the Heritage Foundation, a conservative think tank, said in a statement. Thursday.
The proposed rules state that “preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX”, but do not directly address the issue of denying transgender students the opportunity to play in sports teams that match their gender identity.
“The department recognizes that the standards for students participating in male and female athletic teams are evolving in real time,” said Mr. Cardona. “And so we’ve decided to create separate rules about how schools can determine eligibility while maintaining Title IX’s non-discrimination guarantee.”
The rules also come after a handful of incidents reported in recent weeks that have shown animosity towards schools that have sought to defend the rights of transgender students.
Last month, a Wisconsin school district closed its schools — having had to evacuate several other buildings in the city — after it received multiple bomb threats in response to its investigation into a Title IX complaint from a transgender student. Last week, a father was arrested and charged with making threats against a Vermont school district after saying he would “show up and kill someone” if his child was approached by a transgender at school, according to VTDigger, an online news outlet.