WASHINGTON – The Biden administration on Thursday proposed new rules governing the way schools should respond to gender discrimination, repealing key parts of the Trump administration’s policy that narrows the scope of investigations into sexual misconduct on campus and upholds of transgender students in law.
The proposal will review the extensive rules finalized by former Education Minister Betsy DeVos, which for the first time codifies how universities, colleges and schools K-12 investigate sexual violence and bullying on campus. It will also expand the list of those protected under Title IX, a federal law signed 50 years ago on Thursday that prohibits gender discrimination in educational programs or activities that receive federal funding.
“It is the responsibility of the Ministry of Education to ensure that all our students can learn, grow and thrive in school, no matter where they live, who they are, who they love or how they identify,” Education Minister Miguel A. Cardona told reporters on Thursday morning.
The proposal is sure to clash with conservative state and federal lawmakers and draw legal action from conservative groups that have already begun fighting the department’s position last year that transgender students are protected under Title IX. This communication is based on a Supreme Court ruling in 2020, which found that protection in the Civil Rights Act against discrimination in the workplace extends to gays and transgender people.
Civil liberties groups also expect legal challenges to freedom of expression and due process if the department rejects certain provisions of the Trump administration’s rule, which reflects the legal precedent set by the Supreme 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 the eligibility of students to participate in a specific men’s or women’s athletics team.”
The Trump administration’s 2020 rules narrowed the definition of sexual harassment, expanded the rights of students accused of harassment and assault, relieved schools of certain legal responsibilities, and required schools to conduct court proceedings called “live hearings.” which allowed cross-examination of the parties involved. These rules do not define “gender-based harassment”, and the administration itself has taken the position that Title IX does not extend the protection of persons facing discrimination on the grounds of gender identity.
A report released by the Biden administration said the new rules seek to “restore vital protections for students in our nation’s schools that have been eroded by conflicting regulations applied during the previous administration.” It also says that Trump’s rules “weaken the protection of survivors of sexual violence and reduce the promise of education without discrimination.”
The proposed rules will go through a long period of public consultation before becoming final and taking effect.
Mr. Biden, who helped develop controversial Obama-era guidelines on how schools should investigate the sexual harassment and bullying that Ms. DeVos later removed, was among the most vocal critics of DeVos rules. As a candidate, he promised to put a “quick end” to them if elected.
The newly proposed rules have been informed by a wide range of stakeholder contributions for a year and a half, officials said, including a national virtual public hearing. They are largely returning to the Obama-era approach; The Obama administration has never made formal rules on the matter, but has issued guidance documents in 2011 and 2014 that seek to cover the entire universe of sexual harassment claims and means, as well as the powers of the law enforcement department. .
Critics of the Obama-era guidelines, including college leaders, said schools felt pressured to side with prosecutors without giving defendants enough rights. Since then, dozens of students have won lawsuits against their colleges for violating their rights in due process.
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The rules proposed on Thursday were widely seen as a victory for critics of Trump-era rules, especially advocates of survivors of sexual violence, who attacked Trump’s rules as too harsh and potentially traumatic or obstructive to victims.
Emma Grasso Levin, manager of Know Your IX, a youth-led victim rights group, said in a statement that the organization continues to see survivors “experiencing punishment, revenge and being kicked out of school due to anti-surviving 2020 regulations.” . “
“It is impossible to overestimate how many surviving students need these changes to the rules of Title IX to ensure a fair complaint process and to ensure that the education of survivors is not further interrupted by the effects of sexual violence. “, she said.
The proposal expands the definition of what constitutes sexual harassment and the types of episodes that schools are required to consider and investigate – to include, for example, off-campus or overseas incidents, as well as incidents that create a “hostile environment”. The new rules will repeal and Ms. DeVos’s most controversial rules and will make live hearings and cross-examination optional, not mandatory.
The proposal retains aspects of Ms DeVos’s rules – which have provoked more than 120,000 public comments and failed legal challenges – which emphasize the presumption of innocence, fair and impartial investigations and the fair rights of defendants and prosecutors.
However, the proposal “has shortcomings that make it face the courts,” said Joe Cohn, legislative and political director at the Foundation for Individual Rights and Expression, a non-partisan civil liberties group.
Mr Cohn said the administration’s refusal to hold live hearings and cross-examinations, as well as its deviation from the Supreme Court’s ruling on sexual harassment used by Ms DeVos, ignored the freedom of speech and due process decisions that already have found such measures relevant to the proceedings of Title IX. The rule also restores the “single investigator” model, which courts find problematic, he said, in which a person acts as a judge and jury.
“This rule works as if this case law does not exist,” Mr Cohn said. “They have to make significant revisions if they want the regulation to survive.
The proposal is expected to divide members of Congress along party lines. Sen. Richard M. Burr, a Republican from North Carolina and a senior member of the Senate Education Committee, said the proposed change clearly shows that “the administration places charges of guilt above the fair consideration of evidence.”
Senator Patti Murray, a Democrat from Washington and chairman of the Senate Education Committee, called the proposal “a world of change from the reverse DeVos rule, which has made it easier for schools to sweep bullying and carpet attacks and make it harder for survivors to move forward, seek justice and feel safe on campus. “
Biden’s proposal to define gender-based discrimination and harassment to include “stereotypes, gender, pregnancy or related conditions, sexual orientation and gender identity” is likely to become a major lightning rod.
On Thursday, 17 prosecutors, led by Austin Knudson of Montana and Todd Rokita of Indiana, sent a letter to Mr Cardona vowing to fight “the proposed changes to Title IX with every tool available in our arsenal,”
Such protections would make schools’ responsibilities to transgender students clearer by regulating the ongoing debate on their right to use bathrooms marked for the gender they identify with; dress as they prefer; to be indicated by their preferred pronouns; and be protected from gender-based harassment.
They would also help blunt the country’s growing efforts to “erase” the existence of LGBTQ youth across the country, said Jennifer Pizer, chief legal officer of Lambda Legal, one of the oldest civil rights organizations in the country. representing the LGBTQ community.
“This is an immeasurably huge step forward,” she said, adding that “clear, powerful statements in support of the concrete steps required by the federal government could not be more timely.”
The rules come after a debate over the participation of transgender students in sports teams excites state houses and school boards across the country. In recent years, Republican-dominated legislatures in at least 18 states have introduced restrictions on the participation of transgender people in sports in public schools, 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 competitions.
Conservative groups have condemned the Biden administration’s efforts to include gender identity protection in multi-agency laws as an excessive government action that undermines the rights that Title IX seeks to pursue.
“Fifty years of protecting women and girls in school activities are about to be erased because the Biden administration embraces the awakened gender ideology before basic human biology,” Kevin Roberts, president of the Heritage Foundation, a conservative think tank, said in a statement Thursday.
The proposed rules dictate that “preventing someone from participating in school programs and activities corresponding to their gender identity would cause harm in breach of Title IX”, but do not directly address the issue of denying transgender students the opportunity to play in sports teams. that correspond to their gender identity.
“The department recognizes that the standards for students participating in men’s and women’s athletic teams are evolving in real time,” said Mr Cardona …
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