The rights of LGBTQ students will be enshrined in federal law, and victims of campus sexual assault will receive new protection under new rules proposed by the Biden administration on Thursday.
The proposal, announced on the 50th anniversary of Title IX Women’s Rights Act, is intended to replace a set of conflicting regulations issued during the Trump administration by Education Secretary Betsy DeVos.
President Joe Biden’s Minister of Education Miguel Cardona said that despite significant progress towards gender equality, discrimination and sexual violence persist.
“While we are celebrating all the progress we have made, standing up for equal access and inclusion is as important as ever,” he said.
The proposal will almost certainly be challenged by conservatives and is expected to lead to more legal battles over the rights of transgender students in schools, especially in sports. It now faces a public comment period before the administration can finalize any changes, meaning the policy won’t go into effect until next year at the earliest.
The move responds to a demand from victims’ rights advocates who wanted Biden to publish new rules no later than the anniversary of Title IX, which bans sex discrimination in schools and colleges. Advocates say DeVos’ rules have gone too far in protecting students accused of sexual harassment at the expense of the victims.
As a presidential candidate, Biden vowed to quickly end DeVos’ rules, saying they would “shame and silence the survivors.”
In announcing its proposal, Biden’s Department of Education said that DeVos’ rules “weaken protections for survivors of sexual assault and diminish the prospects for a discrimination-free education.”
For the first time, the rules officially protect LGBTQ students under Title IX. Nothing in the 1972 law explicitly addresses this topic, but the new proposal makes it clear that the law applies to discrimination based on sexual orientation and gender identity.
It would have made it clear that “preventing anyone from participating in school programs and activities consistent with their gender identity would be harmful in violation of Title IX,” the department said in a statement. The department said more specific rules regarding the rights of transgender students in school sports will be released at a later date.
Biden marked the anniversary of the passage of Title IX, acknowledging the impact of the law in promoting justice, but acknowledging that there was still more to be done.
“Looking into the next 50 years, I am determined to defend this progress and work towards full equality, inclusion and dignity for women and girls, LGBTQI+ Americans, all students and all Americans,” the statement said.
Many of the proposed changes will restore the Obama-era rules that DeVos’ policies have replaced.
The definition of sexual harassment will be expanded to cover a wider range of misconduct. Schools will be required to respond to any allegations that create a “hostile environment” for students, even if the misconduct originates off campus. Most college staff, including professors and coaches, will be required to notify campus officials if they become aware of potential gender discrimination.
As a result of the victory of victims’ rights advocates, the proposal would remove the rule requiring colleges to hold live hearings to investigate cases of sexual harassment – one of the most controversial aspects of DeVos’ policy. Under the new policy, live hearings will be allowed, but colleges may also appoint campus officials to interview students separately.
Biden’s actions drew praise from victim rights groups, LGBTQ advocates and Democratic lawmakers.
“These proposed rules demonstrate a strong commitment to protecting educational opportunities for all students, including LGBTQ students,” said Janson Wu, executive director of Gay and Lesbian Defenders and Defenders. “Especially in light of the ongoing attacks on state legislatures, we are grateful to the administration for its strong support for LGBTQ youth.”
Republicans in Congress were quick to denounce the proposal. Rep. Virginia Fox of North Carolina, the top Republican on the House Committee on Education and Labor, said the rules “will destroy the due process rights and safety of young women and girls across the country, and the promised rules are yet to be enacted to undermine women’s access.” to sports opportunities.
If the proposal is finalized, it would mean the second change to Title IX federal regulations in two years. The DeVos rules themselves were intended to change the leadership of the Obama era. Obama’s policy was supported by victim advocates but resulted in hundreds of lawsuits from accused students who said their colleges did not give them a fair defense process.
Because of the whip, many schools are forced to adopt ever-changing rules. Some are pushing for a political compromise stance that will protect students without requiring new rules to be introduced every time the White House changes government.
“No one benefits from changing the rules every five years like ping pong,” said S. Daniel Carter, campus safety consultant and president of Safety Advisors for Educational Campus. “It’s just not the best way to get things done. It’s very difficult for everyone involved.”
The DeVos Rules dramatically changed how colleges deal with allegations of sexual harassment and harassment, with a focus on ensuring defendants’ constitutional rights to due process.
Under its rules, accused students were given greater rights to examine and respond to evidence against them, and students had the right to cross-examine each other through a representative in live hearings.
The demand for a live hearing was hailed as a victory for the accused students, but it drew strong backlash from other advocates who said they were forcing the victims to relive their trauma.
DeVos also reduced the responsibilities of colleges in responding to complaints. Her policies have narrowed the definition of harassment and reduced the number of cases colleges have to deal with. As a result, the number of Title IX complaints from students has dropped dramatically on some campuses.
Under its rules, for example, colleges are not required to investigate most off-campus complaints, and they are not required to take action on any complaint unless the alleged misconduct is “serious, pervasive, and objectively offensive.”
The overhaul was partly meant to ease the burden on colleges as they mediate difficult cases, but some say it ended up adding more work.
Some college leaders have said DeVos’ rules are too prescriptive, forcing them to turn campus discipline systems into miniature courtrooms. Many schools continued to handle all complaints of sexual harassment, even if they did not meet the narrow definition of harassment, but had to establish separate disciplinary processes to deal with such cases.
Supporters on both sides say it could confuse students.
“It shouldn’t be like that. If anything, it needs to be more uniform — which is why the Title IX rules were introduced,” said Kimberly Lau, a New York lawyer who represents students in Title IX cases.
Biden’s proposal is an important step in fulfilling his promise to change DeVos’ rules. He started the process last year when he ordered the Department of Education to revise the rules, but the agency got bogged down in the slow process of developing the rules.