The 50th anniversary of Title IX, the federal civil rights law that prohibits sex discrimination in schools, President Joe Biden’s administration proposed sweeping new guidelinesThe statute will strengthen protections for students who have been victims of sexual assault and provide formal protections to LGBTQ+ students.
Miguel Cardona, Education Secretary announced Thursday that the proposed changes would largely reverse Betsy DeVos’ legacy.
“As we celebrate the 50th anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all our nation’s students — no matter where they live, who they are, or whom they love — can learn, grow, and thrive in school,” Cardona said.
DeVos, President Donald Trump’s education secretary, enacted Title IX regulations for 2020. They were met with widespread criticism. Advocates said that DeVos had been particularly critical of giving more protections for students accused of sexual misconduct, making reporting to schools easier for survivors, and allowing discrimination to LBGTQ+ students to go unchecked.
In a landmark move, Cardona’s proposal identifies that Title IX indeed bars discrimination on the basis of sexual orientation or gender identity. The Title IX proposal also strengthened protections for survivors and victims of sexual assault.
“If adopted, these rules would not only correct the Trump administration’s gutting of Title IX but also provide important new protections for student survivors of sexual harassment, LGBTQ students, and pregnant and parenting students,” said Alexandra Brodsky, a civil rights attorney and author of “Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash.”
Before the Biden administration can officially approve the proposal, it must permit public comment on the proposed changes. The proposed updates will be opposed by conservatives, namely the protections for LGBTQ+ students. But if the Biden administration’s Title IX regulations survive Republican challenges that experts predict will likely end up in court, the changes will take effect next year. The Biden administration will face the possibility of delays in implementing the new rules. If Republicans win control of the Senate and the House after the midterm elections they will have to deal with the possibility that the GOP could invoke the Congressional Review Act to reverse them.
Protections for LGBTQ+ Students
Title IX was originally designed to protect girls and women against sex discrimination, particularly those who were pregnant or parenting. Title IX didn’t mention LGBTQ+ youth at the time it was enacted, on June 23, 1972.
Cardona stated previously that the Supreme Court “has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion and discrimination — and our LGBTQ+ students have the same rights.” Now, his Title IX plan states that schools would be violating the rights of students by preventing them “from participating in school programs and activities consistent with their gender identity.”
Many of the potential changes were welcomed by LGBTQ+ students. However, some felt that the administration had not gone far enough.
The National Center for Lesbian Rights’s executive director, Imani Rupert-Gordon, noted the historic protections for LGBTQ+ students.
“Since his election, President [Biden] has been uncompromising in his commitment to do everything in his power to protect LGBTQ Americans from discrimination in every facet of their lives — including education,” Rupert-Gordon said in a statement.
Cardona didn’t provide any details about his plans for protecting the rights of transgender school athletes. The Education Department stated that these details will be provided later in a separate rulemaking process.
“I’m disappointed that the Education Department has delayed promulgating a rule to ensure inclusion of trans athletes,” Brodsky said.
Some LGBTQ+ advocacy organizations expressed outrage at the lack of action by the administration to protect marginalized students. Paul Southwick, director of advocacy group the Religious Exemption Accountability Project (REAP), objected to the Biden administration’s failure to protect the rights of LGBTQ+ students at religious schoolsin its Title IX proposal. Officials from faith schools can apply religious exemptions to Title IXBy writing to the Department of Education regarding the sections of the statute that they disagree with. After becoming subjects of Trump’s administration, institutions that had never asked for exemptions were allowed to do so by the Trump administration. Title IX complaints. This is true even though Biden has been elected.
“The Biden administration failed to propose any rules to rescind the Trump-era expansion of the Title IX religious exemption that allows hundreds of taxpayer-funded religious colleges, like BYU, Baylor and Liberty, to openly discriminate against tens of thousands of LGBTQ+ students,” Southwick said in a statement. “The Biden administration continues the Trump policy of allowing religious taxpayer-funded educational institutions to not only receive licenses from our government to discriminate, but to do so retroactively and without notice.”
Southwick said that the Biden administration could have used their Title IX proposal to require taxpayer funded colleges to inform the government and potential students about plans to ignore Title IX. This notice requirement was eliminated during the Trump administration.
Protections for Sexual Assault Survivors Increased
Advocates for victims of sexual assault on students stated that the Biden-era regulations would usher in an unprecedented era in schools’ approach to sex discrimination. They will offer increased support to student survivors in many ways.
The Education Department defined sexual harassment over many years as unwelcome conduct of a sexual nature, but the DeVos regulations directed schools to dismiss sexual harassment complaints except for cases in which the harassment is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Cardona said Thursday that his proposed changes “would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone.”
Biden’s administration will also reverse controversial DeVos regulations, which required schools to hold live deliberations with cross examinations of accused persons and survivors during investigations into sexual misconduct. Cross-examinations are a way for victims of sexual assault to tell their stories and discourage them reporting violence. DeVos regulations actually have resulted in fewer sexual misconduct complaints at schools.
The Biden administration’s proposed Title IX rules will allow schools to address various forms of sexual misconduct, including those that lead to a hostile student environment. Schools were not responsible for wrongdoing on campus, according to the DeVos Rules. Cardona’s plan holds schools accountable for misconduct that occurs both on and off school grounds. His proposal also requires schools that they investigate sexual misconduct promptly, while DeVos guidelines allowed them the flexibility to prolong the process.
“Instead of focusing protections on those accused of sexual misconduct, the new proposed regulations recenter back to students being denied equal access to education due to sex or gender-based discrimination, harassment and violence,” said Laura Dunn, founding partner of L.L. Dunn Law Firm, Washington, D.C.
End Rape On Campus’ executive director Kenyora Paraham called campus sexual assault a crisis of public health that must be addressed quickly. She wants the Biden administration now to take action to stop sexual misconduct in schools, rather than waiting for its proposal to be finalized.
“The Department should act right now to protect students by issuing a non-enforcement directive of dangerous provisions of the current rule that perpetuate harm towards survivors,” she said. “Students and survivors, especially those from historically excluded and marginalized communities, not only deserve but have a right to receive an education that is free from violence. Their livelihood depends on it.”