Biden’s Title IX changes avoid questions from trans athletes

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

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

Proposed Title IX reforms reverse many Trump administration changes that narrowed the scope of the 1972 law. The Department of Education said the proposed rules would restore protections for victims of sexual harassment, assault and gender discrimination, calling them “an essential safety net for survivors that has been weakened by previous regulations”.

The regulations will now enter a 60-day public comment period and may still be revised before becoming final.

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

What do the new Title IX rules 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 colleges to hold live hearings in which students can object. – interviewed to assess their credibility. These changes have been criticized by advocates for sexual assault victims, who have argued that it could re-traumatize victims and deter them from reporting sexual misconduct.

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

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

The proposed rules also require schools to rely on a preponderance of the evidence, a lower burden of proof than that required by criminal courts, when deciding sexual assault cases, although there are exceptions. The Trump administration’s 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 guidelines also allow, but do not require, live hearings and allow those involved in the case to participate in the hearing from separate locations. And the rule would not require cross-examination, “but would allow a post-secondary institution to use cross-examination if it wishes or is required by law.”

Advocates for victims of sexual assault have welcomed the proposed settlement. “By returning to a more inclusive definition of sexual assault and improving the process of investigating sexual assaults, student survivors at all levels are better supported,” advocacy group End Rape on Campus said in a statement. communicated. Tweeter.

How do the rules affect trans students?

The proposed regulations state 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 Department of Education has largely sidestepped the question of what rights transgender athletes are granted under Title IX — a question raging at the state level. Instead, the Department of Education said it would engage in a separate rulemaking process to address the application of Title IX to athletics and the eligibility of students to compete in sports. male or female sports teams.

“The department recognizes that standards for students competing on men’s and women‘s sports teams are changing in real time,” Cardona said Thursday. “That’s why we decided to make a separate rule about how schools can determine eligibility, while respecting the Title IX non-discrimination guarantee.”

Since 2020, 18 states have enacted laws prohibiting transgender athletes from playing on sports teams aligned with their gender identity — laws that weren’t in place when the Obama-era Title IX guidelines, published in 2016, said denying trans students access to a sports team aligned with their gender identity violated Title IX. This letter was revoked under the Trump administration.

The debate over the rights of trans girls and women to play sports aligned with their gender identity became a live political thread midway through November, with conservative political operatives pledging to spend millions on advertising to use the issue to rally their base and appeal to potential swing voters.

Proponents of trans sports bans argue that they are intended to maintain fairness in sports for girls and women and are not intended to discriminate against vulnerable groups. But critics say they are a solution in search of a problem, pointing to the fact that there are very few examples of trans students competing in sports in the United States, and those who do are already subject to local policies. They called for more action to protect trans students from discrimination in schools.

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

“Sexual harassment and assaults still happen on college campuses. Inequalities 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 made, standing up for equal access and inclusion is more important than ever.”

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Write to Katie Reilly at [email protected] and Madeleine Carlisle at [email protected]

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