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Biden Administration Announces Plan That Would Undo DeVos’s Gutting of Title IX

The proposed guidelines would enhance protections for sexual assault survivors and add them for LGBTQ+ students.

Education Secretary Miguel Cardona speaks at the Department of Education in Washington, D.C., on June 2, 2022.

On 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 guidelines for the statute that strengthen protections for student sexual assault survivors and create formal protections for LGBTQ+ students for the first time.

Education Secretary Miguel Cardona announced the proposed changes that would largely reverse the legacy of his predecessor, Betsy DeVos, on Thursday.

“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.

As education secretary under President Donald Trump, DeVos enacted Title IX regulations in 2020 that faced widespread criticism on a number of counts but particularly, advocates said, for giving more protections to students accused of sexual misconduct, making it harder for survivors to report their abuse to schools and letting discrimination against LBGTQ+ students 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 shored up protections for survivors 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 formalize the proposal, it must allow for a public comment period on the would-be changes. Conservatives are expected to oppose the proposed updates, 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. If implementation of the new rules is delayed, the Biden administration will also have to contend with the possibility that if Republicans take over the House and the Senate after the midterm elections, the GOP will have up to 60 legislative days to invoke the Congressional Review Act to reverse the regulations.

Protections for LGBTQ+ Students

Originally focused on protecting girls and women from sex discrimination, especially those who were pregnant or parenting, Title IX did not specifically mention LGBTQ+ youth when it was first enacted on June 23, 1972.

Cardona said 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.”

Supporters of LGBTQ+ students applauded many of the potential changes, though others stressed that the administration did not go 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 did not, however, provide specifics about his plans to protect the rights of transgender students in school sports. Those details are to come later in a separate rulemaking process, the Education Department said.

“I’m disappointed that the Education Department has delayed promulgating a rule to ensure inclusion of trans athletes,” Brodsky said.

Some LGBTQ+ advocacy groups expressed outrage that the administration has not taken more action on behalf of 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 schools in its Title IX proposal. Officials from faith-based schools can get religious exemptions to Title IX by writing statements to the Department of Education about the parts of the statute that go against their beliefs. The Trump administration allowed institutions that had never requested exemptions to do so after becoming subjects of Title IX complaints. This still applies now that Biden is in office.

“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 added that the Biden administration could have used its Title IX proposal to require taxpayer-funded colleges to notify the government and prospective students of their plans to ignore Title IX. During the Trump administration, this notice requirement was removed.

Protections for Sexual Assault Survivors Expanded

Advocates for student sexual assault survivors indicated that the Biden-era regulations will usher in a new and unprecedented era for how schools approach sex discrimination, offering expanded support to student survivors in a number of ways.

For years, the Education Department defined sexual harassment 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.”

The Biden administration also plans to reverse the controversial DeVos regulations requiring schools to hold live hearings with cross examinations of the accused people and survivors during sexual misconduct investigations. Supporters of sexual assault survivors said cross-examinations require victims to recount traumatic incidents and deter them from reporting sexual violence. In fact, schools have received fewer sexual misconduct complaints while the DeVos regulations have been in effect.

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. Under the DeVos rules, schools were off the hook for wrongdoing that took place off campus. Cardona’s plan holds schools accountable for misconduct that occurs both on and off school grounds. His proposal also requires schools to wrap up sexual misconduct investigations in a timely manner, while the DeVos guidelines allowed them 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 in Washington, D.C.

Kenyora Parham, executive director of End Rape On Campus, called campus sexual assault a public health crisis that needs to be addressed swiftly. She would like the Biden administration to take action now to stop sexual misconduct at schools rather than wait until its proposal is 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.”

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