WASHINGTON – Biden administration on Thursday proposed new rules governing how schools should respond to sex discrimination, backtracking large parts of a Trump administration policy that reduced the scope for inappropriate sexual conduct investigations on campus and consolidating the rights of transgender students.
The proposal will review expansive rules finalized under former Secretary of Education Betsy DeVos, who for the first time codified how K-12 universities, colleges and schools investigate sexual assault and harassment on campus. It would also expand the list of those protected by Title IX, the federal law signed 50 years ago on Thursday that bans discrimination based on sex in education programs or activities that receive federal funding.
“It is the responsibility of the Department of Education to ensure that all of our students can learn, grow and thrive in school no matter where they live, who they are, who they love or how they identify,” the Secretary of Education said. Miguel A. Cardona, to journalists. Thursday morning.
The proposal will surely establish a confrontation with conservative federal and state lawmakers and bring out legal action from conservative groups that had already begun criticizing the department’s position, issued last year, that transgender students were protected by Title IX. This announcement was based on a 2020 Supreme Court ruling that determined that the protections of the Civil Rights Act against discrimination in the workplace extended to gay and transgender people.
Civil liberties groups also anticipate legal challenges on issues of free speech and due process if the department abandons certain provisions of the Trump administration rule that reflect the legal precedent set by the Supreme Court and lower courts.
The department said it would publish a separate regulation on how Title IX applies to athletics, including what criteria schools can use “to establish the eligibility of students to participate in a particular male or female sports team.”
The Trump administration’s rules, issued in 2020, restricted the definition of sexual harassment, expanded the rights of due process for students accused of harassment and assault, freed schools from certain legal responsibilities, and demanded that schools held court-like proceedings called “live hearings.” which allowed the interrogation of the parties involved. These rules did not define “harassment by sex” per se, and the administration had taken the position that Title IX did not extend protections to those facing discrimination on the basis of 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 that were eroded by controversial regulations implemented during the previous administration.” He also said Trump’s rules “weakened protections for survivors of sexual assault and diminished the promise of a discrimination-free education.”
The proposed rules will go through a long period of public comment before they are final and come into force.
Mr. Biden, who helped develop a controversial Obama-era guide to how schools should investigate the sexual assault and harassment that Mrs. DeVos later abandoned, was one of the most critical. clear of DeVos rules. As a candidate, he pledged to put a “quick end” on them if elected.
The proposed new rules were informed by a wide range of stakeholder input over a year and a half, officials said, including a virtual public hearing across the country. They largely return to the Obama-era approach; The Obama administration never drafted formal rules on the issue, but issued guidance documents in 2011 and 2014 that sought to capture the entire universe of sexual harassment claims and appeals and scope. of the department.
Critics of the Obama-era guide, including college leaders, have said schools felt pressured to side with prosecutors without extending enough rights to defendants. Since then, dozens of students have won lawsuits against their schools for violating their rights to due process.
About Being Transgender in America
The rules proposed Thursday were widely seen as a victory for critics of Trump-era rules, especially for advocates of sexual assault survivors, who had attacked Trump’s rules as too strict and potentially traumatic or obstructive to to the victims.
Emma Grasso Levine, manager of Know Your IX, a youth-led victim rights group, said in a statement that the organization continued to see survivors “experiencing punishment, retaliation and expulsion from school because of the anti-survivor 2020 “. regulations ”.
“It cannot be overstated how much surviving students need these changes to Title IX rules to ensure fair grievance processes and ensure that the education of survivors is not further disrupted by the impacts of sexual violence,” he 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 took place off-campus or abroad, as well as incidents that create a “hostile environment.” . ” The new rules would also push back Ms.’s most controversial rules. DeVos, and would make live hearings and cross-examination optional, rather than mandatory.
The proposal retains aspects of Ms. DeVos, which generated more than 120,000 public comments and unsuccessful legal challenges, emphasizing the presumption of innocence, fair and impartial investigations, and the equitable rights of defendants and accusers.
Still, the proposal “has flaws that put it on a path of collision with the courts,” said Joe Cohn, legislative and political director of the Foundation for Individual Rights and Expression, a nonpartisan group of civil liberties.
Mr. Cohn said the administration’s reversal in hearings and live interrogations, as well as its deviation from the Supreme Court definition of sexual harassment used by Ms. DeVos, ignore the freedom of expression and the resolutions of the due process that have already considered these essential measures by Deliberations of the case of the title IX. The rule also restores a “single investigator” model that courts have found problematic, he said, under which a person acts as a judge and juror.
“This rule acts as if this set of jurisprudence did not exist,” Mr. Cohn. “They have to do major revisions if they want the regulation to survive.”
The proposal, predictably, divided congressional lawmakers into partisan lines. Sen. Richard M. Burr, a Republican from North Carolina and a member of the Senate Education Committee’s classification, said the proposed change made it clear that “the administration is putting accusations of guilt above fair consideration. of the tests “.
Sen. Patty Murray, a Washington Democrat and chair of the Senate Education Committee, described the proposal as “a world of change since the delayed DeVos rule, which made it easier for schools to sweep away harassment and aggression.” under the carpet, and harder for survivors to come in. Go ahead, seek justice and feel safe on campus. “
Biden’s proposal to define discrimination and harassment based on sex to include “stereotypes, sexual characteristics, related pregnancies or conditions, sexual orientation, and gender identity,” is likely to become the biggest 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 promising to fight “the proposed changes to Title IX with all the tools available in our arsenal.”
These protections would make more explicit the responsibilities of schools towards transgender students, resolving the ongoing debates about their right to use the bathrooms marked by the gender with which they identify; dress as they prefer; refer to your favorite pronouns; and be protected from harassment on the grounds of gender.
They would also help curb growing efforts to “erase the existence” of LGBTQ youth taking place across the country, said Jennifer Pizer, acting legal director of Lambda Legal, one of the country’s oldest civil rights organizations that represents the LGBTQ community.
“It’s an immeasurably huge step forward,” he said, adding that “clear and powerful statements of support with concrete action measures required by the federal government could not be more timely.”
The rules emerge as a debate over the participation of transgender students in sports teams loosens governments and school boards across the country. In recent years, Republican-dominated legislatures 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’s governing body for swimming, essentially banned transgender women from competing at the highest levels of international women’s competition.
And conservative groups have denounced the Biden administration’s efforts to include gender identity protections in the laws of various agencies, as the government’s excess undermining the rights that Title IX sought to improve.
“Fifty years of protections for women and girls in school activities are about to be erased because the Biden administration adopts the awakened gender ideology above basic human biology,” said Kevin Roberts, president of the Heritage Foundation, a conservative think tank, in a statement Thursday.
The proposed rules dictate 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 teams. sports that correspond to their gender identity.
“The department recognizes that the standards of students participating in men’s and women’s sports teams are evolving in real time,” Mr. Cardona ….