Title IX Changes From Biden Avoid Trans Athlete Questions

TThe Biden Administration made changes to the U.S. Title IX anti-discrimination rules that would expand the law’s protections against sexual assault and harassment—and would also codify students’ protections on the basis of sexual orientation or gender identity.

However, the new rules, announced Thursday on the 50th anniversary of the landmark civil rights law, would put off addressing the question of transgender athletes participating in sports—an issue that has been taken up by conservative activists and some state legislatures.

The proposed Title IX reforms roll back many of the Trump Administration’s changes that narrowed the scope of the 1972 law. The Education Department said the proposed rules would restore protections for victims of sexual harassment, assault, and sex-based discrimination, calling it a “critical safety net for survivors that was weakened under previous regulations.”

Now, the regulations are open for public comments for 60 days. They could be amended before being finalized.

“Our proposed changes would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment, alone, and make clear those protections include discrimination based on sexual orientation and gender identity,” Education Secretary Miguel Cardona said during a press call on Thursday.

What does the Title IX rule change?

The Trump Administration’s Title IX rules had narrowed the definition of sexual harassment and expanded the due-process rights of those accused of sexual assault, requiring that colleges hold live hearings during which students can be cross-examined to assess their credibility. Advocates for victims of sexual abuse criticized the changes, arguing that it might re-traumatize victims or deter them reporting misconduct.

The Biden Administration’s proposed rules require schools to “take prompt and effective action” to stop sex discrimination on campus and to conduct “a reliable and impartial investigation of all sex discrimination complaints,” not just formal complaints of sexual harassment.

The rules also require schools to address misconduct that takes place in school programs or activities, even if the conduct “occurred off campus or outside the United States.” That’s a change from Trump-era regulations that had excluded schools from addressing actions that took place while students were studying abroad.

Schools are required to use a preponderance or lower burden of evidence when deciding cases of sexual assault. However, exceptions can be made. The Trump Administration rules allowed schools to choose between the “preponderance of evidence” standard or the “clear and convincing evidence” standard, which is a higher bar.

The Biden Administration’s guidance also permits, but does not require, live hearings and allows those involved in the case to participate in the hearing from separate locations. And the regulations would not require cross-examination, “but would permit a postsecondary institution to use cross-examination if it so chooses or is required to by law.”

Proposed regulations were praised by advocates for sexual assault victims. “By returning to a more inclusive definition of sexual assault and improving the sexual assault investigation process, student survivors at all levels are better supported,” the advocacy group End Rape on Campus said in a tweet.

What does the rule mean for trans students?

The proposed regulations clarify that “preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX.” But the Education Department largely sidestepped the question of what rights transgender athletes are granted under Title IX—an issue that has been raging at the state level. Instead, the Education Department said it would engage in a separate rulemaking process to address Title IX’s application to athletics and students’ eligibility to participate in male or female sports teams.

“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” Cardona said Thursday. “That’s why we decided to do a separate rule-making on how schools may determine eligibility, while upholding Title IX’s non-discrimination guarantee.”

Since 2020, 18 states have enacted laws banning transgender athletes from playing on sports teams aligned with their gender identity—laws that were not in place when the Obama-era Title IX guidance, issued in 2016, stated that denying trans students access to a sports team aligned with their gender identity violated Title IX. The Trump Administration revoked that letter.

In November’s midterm elections, the debate about transgender girls and women being allowed to engage in gender-aligned sports has turned into a major political hot topic. Conservative political operatives are promising to spend millions advertising the issue in an effort to attract potential swing voters.

Supporters of trans sports bans argue they are meant to keep girls’ and women’s sports fair, and are not intended to discriminate against any vulnerable group. Critics argue that they’re a solution to a problem. They point to the fact there is very little trans student participation in any sport in the United States, while those that do are subject to existing policies. They call for increased protections to trans students from being discriminated in schools.

“I firmly reject efforts to politicize these protections and sow division in our schools,” Cardona said Thursday, arguing that ongoing issues of discrimination in schools show the need for more change, even 50 years after Title IX became law.

“Sexual harassment and assaults still occur on college campuses. Inequities in women’s college athletics still exist. And some states are passing laws targeting LGBTQ students,” he said. “So even as we celebrate all the progress we’ve achieved, standing up for equal access and inclusion is as important as ever before.”

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