The Biden administration on Thursday proposed sweeping changes to federal rules under Title IX of the Gender Equity Act that would revoke Trump administration mandates on sexual misconduct that advocates for survivors of attacks, was discriminatory against the victims.
The new regulations would also extend Title IX’s prohibition of sex discrimination to sexual orientation and gender identity, providing historic protections for transgender students. The current Title IX regulations do not address the rights of transgender students.
The proposed rules are likely to spark a heated battle over schools’ obligations to tackle sexual misconduct, the balance between the rights of victims and accused students and the rights of transgender students.
“Our proposed amendments would fully protect students from all forms of gender discrimination, instead of limiting certain protections to sexual harassment only, and would make it clear that those protections include discrimination based on sexual orientation and gender identity,” Education Secretary Miguel Cardona said Thursday.
The proposed rules would retain some Trump-era mandates, such as provisions ordering schools to presume accused students are innocent until grievance proceedings are completed and continuing to allow informal resolutions of sexual misconduct complaints. if the accuser and the accused agree.
They would also allow schools to use a clear and convincing standard of proof – which usually means around 75% certainty – to determine whether accused students violated sexual misconduct rules, but only if schools also use it. in other cases of discrimination, such as those involving racial harassment. Otherwise, schools must use the standard of preponderance of evidence, which is about 51% certainty, the same threshold used in most civil lawsuits.
However, the proposal deviates from the current regulations in several ways, including that live hearings would no longer be required in college sexual misconduct cases, cross-examination would not be required at hearings, and schools would be allowed to investigate and punish assaults. that take place off campus. The proposed rules would also allow investigators to decide the outcome of cases, but would require that all Title IX coordinators, investigators, and adjudicators have no conflicts of interest or bias for or against plaintiffs or defendants.
The Biden administration’s proposal would also allow schools to investigate and sanction sexual misconduct without a formal complaint.
The public will be able to submit comments on the proposal within the next 60 days. The Education Department will then need to address each point in writing before settlement can be finalized. The process should take several months or more to complete.
But if Republicans regain a majority in the House and Senate, lawmakers could use the Congressional Review Act to vote within 60 legislative days to overturn key regulations issued by federal agencies.
“We are always concerned that students’ rights are fully protected in school every day, and so we are acting as quickly as possible to ensure those rights are fully protected,” a senior department official said.
Title IX, an element of the Education Amendments of 1972, prohibits discrimination on the basis of sex in any federally funded school – that is, almost all of them. Federal courts have ruled that the law requires schools to address allegations of sexual misconduct.
The Obama administration has stepped up Title IX enforcement in response to a surge in activism by college sexual assault survivors who said schools meted out brutal punishments to attackers and failed to support victims.
Conservative organizations, civil liberties groups and some law professors have opposed the policies, complaining that they have failed to ensure due process in campus investigations.
The Trump administration then spent much of its tenure crafting Title IX regulations, implemented in 2020, that prescribed steps schools must take to respond to sexual assault allegations and tightened the definition of sexual assault. sexual harassment.
The regulations stated that schools were not allowed to open Title IX cases if alleged assaults occurred off campus, required colleges to hold hearings to determine the guilt of accused students, and limited what could be taken into account. account by the courts, among many other provisions. The rules were overwhelmingly opposed by sexual assault survivor advocacy groups, civil rights organizations and K-12 school and college trade groups.
During the 2020 presidential campaign, President Joe Biden promised to overturn the regulations.
The Biden administration said it was using the Supreme Court’s 2020 decision in Bostock v. Clayton County, which has ruled that employees cannot be discriminated against in the workplace because they are gay or transgender, to guide its approach to LGBTQ rights in educational institutions.
The cementing of discrimination against transgender students as a violation of Title IX has attracted a host of new activist groups, many of which have sprung up over the past two years in a flurry of battles within the K-12 schools on race and gender.
The Human Rights Campaign, an advocacy group for LGBTQ people, said the inclusion of sexual orientation and gender identity in Thursday’s draft settlement is a “good first step” towards protecting people’s lives. a “vulnerable population that is too often the prey”.
“This is especially significant, given the attacks on transgender youth across the country,” said Sarah Warbelow, legal director of the Human Rights Campaign, in a statement.
In April, 27 conservative activist groups sent a letter to Cardona expressing concern that the Department of Education’s plans for new Title IX regulations would erode due process protections for charged students and that extending gender identity protections “would deny girls and women equal opportunities in sport.”
The proposed regulations would not specify who is allowed to join men’s or women’s sports teams. A senior Education Department official said the department plans to come up with separate rules regarding athletics, but the official could not say when.
Cardona said, “The department recognizes that standards for students competing on men’s and women’s sports teams are changing in real time.”
More than 200 civil rights groups sent their own letter this month urging the Department of Education to keep the administration’s promise to release new Title IX rules, arguing that sexual assault survivors and LGBTQ and pregnant students are in urgent need of protection and that current regulations have deterred students from reporting allegations of abuse.
“There are students who won’t go through the process, who are too scared to go through the process, who don’t trust the process,” said Adele Kimmel, victims’ rights lawyer for the nonprofit group. Public Justice, one of the groups to sign the letter.
Existing regulations imposed by the Trump administration have also been a “nightmare” for schools, said Jackie Wernz, an Illinois-based lawyer who advises schools on civil rights laws and federal mandates. Requirements for malpractice investigations are too prescriptive, she said, and they often conflict with state laws and union agreements.
“It puts schools in a 22-trap, in that they have to figure out which law they want to violate,” Wernz said.
The Trump administration also removed the requirement that Title IX cases had to be resolved within 60 days, requiring instead that they be completed within a reasonable time. The new proposal would retain the same standard, but add that schools must establish reasonably expeditious timelines for key steps in grievance procedures.
Elizabeth Abdnour, a Michigan-based attorney who represents students in Title IX cases, said she’s had many cases in which schools have taken more than a year to resolve investigations.
“There’s no way to dispute that when the rule just says the time must be reasonable,” Abdnour said.