The Biden administration on Friday issued new rules that strengthen protections for LGBTQ students under federal law and govern how schools should respond to allegations of sexual misconduct in K-12 schools and college campuses. Many of the Trump administration-era policies were reversed.
The new rule, which goes into effect Aug. 1, effectively expands the scope of Title IX, the 1972 law that prohibits sex discrimination in federally funded education programs. It would expand the scope of laws that prohibit discrimination and harassment based on sexual orientation and gender identity, and expand the scope of sexual harassment complaints that schools are responsible for investigating.
“These regulations make clear that everyone has access to schools that are safe, welcoming, and respect their rights,” Education Secretary Miguel A. Cardona said on a call with reporters. .
The rules fulfill a key campaign promise for Biden, who vowed to “swiftly repeal” Trump-era Title IX regulations and has faced pressure from Democrats and civil rights leaders to do so. was facing an increase in
After two delays, the announcement of the latest rules comes as Biden is in the midst of a re-election bid and is trying to energize key districts.
Through the new regulations, the administration is relying on the landmark 2020 Supreme Court case Bostock v., which ruled that the Civil Rights Act of 1964 protects gay and transgender workers from workplace discrimination. Clayton County has moved to include students in its interpretation. The Trump administration has argued, even after the Bostock decision, that transgender students are not protected under federal law.
Betsy DeVos, Trump's education secretary, criticized the “radical rewrite” of the law in a statement, calling it “an initiative born entirely of progressive politics, not sound policy.” insisted.
Ms. DeVos said including transgender students in the law took away decades of protections and opportunities for women. He added that the Biden administration is “looking to move away from the bad old days when sexual misconduct was sent to kangaroo courts on campus and not resolved in a way that actually sought justice.”
The rules announced Friday included some pretty strong protections for LGBTQ students, but the administration has been hit hard by the lightning rod issue of whether transgender students can play on school sports teams according to their gender identity. was avoided.
The administration emphasized that while exclusion based on gender identity generally violates Title IX, the new regulations do not apply to gay housing facilities or sports teams. The Department of Education is pursuing a second regulation that would address gender-related qualifications for men's and women's sports teams. More than 150,000 comments were received during the rulemaking process.
The proposed amendments announced Friday would require transgender students to be subject to a “hostile environment” through bullying or harassment, or face unequal treatment or exclusion in programs or facilities based on their gender identity. , an investigation by the ministry's Civil Affairs Bureau may be initiated. right.
If a student is repeatedly called a name or pronoun other than the one they have chosen, it may also be considered harassment on a case-by-case basis.
“This is a bold and important statement that transgender and nonbinary students belong in our schools and communities,” said Olivia Hunt, policy director at the National Center for Transgender Equality.
The regulation is certain to invite legal challenges from conservative groups.
Mae Mehlman, director of the Independent Women's Law Center, said in a statement that her group plans to sue the administration. She said it was clear that laws prohibiting discrimination on the basis of “sex” meant “binary and biological.”
“The illegal omnibus regulation reimagines Title IX to permit intrusion into women’s spaces and curtailment of women’s rights in the name of greater protection of ‘gender identity,’ and contradicts the text of Title IX. It defeats the purpose,” she said.
The current rules, which went into effect under Trump in 2020, are the first time sexual assault provisions have been codified under Title IX. They strengthened due process rights for accused students, relieved some of the legal liability of schools, and set strict standards for how schools should conduct impartial investigations.
These differ significantly from the Obama administration's interpretation of the law, which came in the form of a non-binding guidance document directing schools to step up investigations into sexual assault allegations amid threat of losing federal funding. It was something. A number of students accused of sexual assault continued to win lawsuits against their universities for violating their due process rights under the guidelines.
The Biden administration's rules strike a balance between the goals of the Obama and Trump administrations. Taken together, the regulations primarily give schools flexibility in how they conduct surveys, something advocates and schools have long sought.
Katherine E. Ramon, director of the department's Civil Rights Division, who also served in that position under President Barack Obama, called the new rule “the most effective Title IX since the rule was first promulgated in 1975.” “Comprehensive content.”
They replaced the narrower definition of sex-based harassment adopted under the Trump administration with one that includes a broader range of acts. And it repealed a requirement that schools only investigate incidents that allegedly occurred on campus or within their programs.
Still, several key provisions of the Trump-era rules were kept in place, including provisions allowing for informal resolutions and prohibiting penalties against students pending an investigation.
One of the most anticipated changes was the repeal of a provision requiring in-person, so-called live hearings, where students accused of sexual misconduct and their attorneys can confront and question their accusers in a courtroom-like setting. was.
The new rules allow for in-person hearings, but do not require them. There also needs to be a process for decision-makers to assess the credibility of parties and witnesses, including asking questions from opponents.
“The new regulations will end an unfair and traumatic grievance process that favors harassers,” said Kel O'Hara, senior attorney at Equal Rights. “Student survivors will no longer be subjected to a process that puts the interests of their perpetrators above their own well-being and safety.”
The new rules also give schools leeway to use a “preponderance of the evidence” standard. This would have a lower burden of proof than the DeVos-era rule recommended, requiring administrators only to determine whether there is a high probability that sexual misconduct occurred. .
The new push for standards has drawn criticism from legal groups, who say the rules strip hard-won protections against flawed findings.
“When dealing with accusations of sexual assault, one of the most heinous crimes a person can commit, we simply say '50 percent and a feather' before convicting someone of this heinous crime.” That's not enough,” he said. Will Creeley, Legal Director, Individual Rights and Expression Foundation;
The changes conclude a three-year process in which the department received 240,000 public comments. The rules also strengthen protections for pregnant students, requiring accommodations such as larger desks and access to elevators, and prohibiting exclusion from activities based on additional needs.
Title IX aims to eliminate gender-based discrimination in educational programs and activities at all institutions receiving federal financial aid, including athletic programs and other areas traditionally dominated by male students. Masu.
The effect of the original law is significant. Far beyond its impact on school programs such as sports teams, many educators believe that Title IX set the stage for today's academic parity. Female college students consistently outnumber male students on campus and are more likely to graduate with a four-year degree than their male counterparts.
But since its creation, Title IX has also become a powerful tool through which successive administrations have sought to steer schools to respond to the dynamic and diverse nature of schools and universities.
Civil rights groups were disappointed that ambiguity remained for LGBTQ students and their families, but the new rules take a stance at a time of educational debate reminiscent of the backlash after the Supreme Court ordered school integration. It was widely praised as such.
More than 20 states have passed laws that broadly prohibit individuals assigned male at birth from playing on girls' and women's sports teams or participating in academic athletic programs; It has enacted a law that prohibits transgender people from using restrooms based on their gender identity.
“Some adults come up and say, 'We're going to make school harder for our kids,'” said Liz King, senior program director for the Education Equity Program at the Leadership Conference on Civil and Human Rights. Stated. “This is a very important rule at a very important moment.”
Schools will have to cram all summer to implement the rules, which will require retraining of staff and an overhaul of procedures that were put in place just four years ago.
Ted Mitchell, president of the American Council on Education, which represents more than 1,700 colleges and universities, said in a statement that the group welcomes the new rule changes, but that the timeline “will not allow us to make these changes to our education policy.” “It ignores the difficulties involved.” I visited campuses all over the country in such a short period of time. ”
Mitchell said, “Title IX guidance and regulations have changed frequently over the years, but we hope that future requirements will be more stable and consistent for students and institutions.” “I hope so.”
