The rights of LGBTQ students would be enshrined in federal law and victims of on-campus sexual assault would be given new protections Rules proposed by the Biden administration on Thursday.
The applicationannounced for the 50th anniversary of Title IX Women’s Rights Actintended to replace a set of controversial rules enacted during the Trump administration Secretary of Education Betsy DeVos.
President Joe Biden’s Secretary of Education, Miguel Cardona, said that despite significant progress toward gender equality, discrimination and sexual violence persist.
“As we celebrate all the progress we’ve made, standing up for equal access and inclusion is more important than ever,” he said.
The proposal will almost certainly be contested by Conservatives and is expected to spark fresh litigation the rights of transgender students in schools, especially in sports. It now faces a public feedback period before administration can finalize changes, meaning the policy is not expected to come into effect until next year at the earliest.
The move comes in response to a call from victims’ rights advocates who wanted Biden to release new rules banning sex discrimination in schools and colleges no later than the anniversary of Title IX. Proponents say the rules of DeVos gone too far in protecting students accused of sexual misconduct at the expense of the victims.
As a presidential candidate, Biden had promised a quick end to DeVos’ rules, saying they would “shame and silence survivors.”
In announcing his proposal, the Biden Department of Education said DeVos’ rules “weakened protections for sexual assault survivors and diminished the promise of nondiscriminatory education.”
For the first time, the rules would formally protect LGBTQ students under Title IX. Nothing in the 1972 Act specifically addresses the issue, but the new proposal would clarify that the Act applies to discrimination based on sexual orientation and gender identity.
It would clarify that “preventing them from participating in school programs and activities that conform to their gender identity would cause harm that violates Title IX,” according to the department. More specific rules dealing with the rights of transgender students in school sports will be released later, the department said.
Biden celebrated the anniversary of Title IX by acknowledging the law’s impact on promoting equity, but acknowledging there is still more work to be done.
“As we look forward to the next 50 years, I am committed to protecting that progress and working to achieve full equality, inclusion, and dignity for women and girls, LGBTQI+ Americans, all students, and all Americans,” he said in an explanation.
Many of the proposed changes would restore the Obama-era rules that replaced DeVos policies.
The definition of sexual harassment would be expanded to cover a broader spectrum of misconduct. Schools would have to deal with any allegations of creating a “hostile environment” for students, even if the misconduct occurs off campus. Most college employees, including professors and coaches, would be required to notify campus officials if they became aware of potential gender discrimination.
A victory for victims’ rights advocates, the proposal would eliminate a rule requiring colleges to hold live hearings to investigate cases of sexual misconduct — one of the most contentious aspects of DeVos policy. Live hearings would be allowed under the new rules, but colleges could also appoint campus officials to interview students separately.
Biden’s action has been praised by victims’ rights groups, LGBTQ advocates and Democratic lawmakers.
“These proposed regulations show a strong commitment to protecting educational opportunities for all students, including LGBTQ students,” said Janson Wu, executive director of Gay and Lesbian Advocates and Defenders. “Particularly in light of the ongoing attacks on state legislatures, we are grateful for the government’s strong support for LGBTQ youth.”
Republicans in Congress were quick to condemn the proposal. Rep. Virginia Foxx of North Carolina, the top Republican on the House Education and Labor Committee, said the rules “would negate the rights to due process and safety of young women and girls across the country, with promised regulations yet to come.” to undermine women’s access to sporting opportunities.”
In a letter to Cardona on Thursday, attorneys general in 18 Republican-run states pushed against protecting transgender students, saying it would “destroy women’s sports.” The group, led by Montana and Indiana, vowed to fight the changes “with every available tool in our arsenal.”
“American women and girls deserve better,” the attorney general wrote. “And if this government does not commit to protecting women’s rights under Title IX, rest assured we will.”
If completed, the proposal would be the second revision of Title IX federal rules in two years. DeVos rules were themselves designed to reverse Obama-era guidelines. Obama’s policy was welcomed by victims’ advocates, but led to hundreds of lawsuits from accused students who said their colleges did not provide them with a fair process of self-defense.
Whiplash has caused many schools to struggle to adopt ever-changing rules. Some have pushed for a political middle ground that protects students without dictating new rules every time the White House changes power.
“It serves nobody to have that ping-pong effect of changing rules every five years,” said S. Daniel Carter, university safety advisor and president of Safety Advisors for Educational Campuses. “It’s just not a good way to get things done. It is very difficult for everyone involved.”
DeVos’ rules have fundamentally changed the way colleges deal with allegations of sexual assault and harassment, with a focus on ensuring the accused’s constitutional rights to due process.
Under their rules, accused students were given a broader right to review and respond to evidence against them, and students had the right to interrogate each other through a representative at live hearings.
The call for a live hearing was hailed as a victory for the accused students, but drew strong backlash from other advocates, who said it was forcing victims to relive their trauma.
DeVos also reduced colleges’ obligations in responding to complaints. Their policy narrowed the definition of harassment and reduced the types of cases colleges must deal with. As a result, the number of Title IX complaints received from students has sharply decreased at some colleges.
For example, under their rules, colleges are not required to investigate most complaints that arise off campus, and they do not have to respond to a complaint unless the alleged misconduct is “serious, pervasive and objectively objectionable.”
The overhaul was intended to take some of the strain off colleges because they broker complex cases, but some say it ended up creating more work.
Some college leaders have said the DeVos Rules are too prescriptive, forcing them to turn campus discipline systems into miniature courtrooms. Many schools have continued to deal with all complaints of sexual misconduct, even if they do not meet the narrower definition of harassment, but have had to establish separate disciplinary procedures to handle these cases.
Advocates on both sides say this can be confusing for students.
“It shouldn’t be like that. It should be more consistent, if anything — that’s the whole reason the Title IX rules were put in place,” said Kimberly Lau, a New York City attorney who represents students in Title IX cases.
Biden’s proposal is an important step in fulfilling his promise to reverse DeVos’ rules. He started the process last year when he ordered the Department of Education to review the rules, but the agency has been bogged down by a slow rulemaking process.
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