Biden administration proposes protections for transgender students and against sexual violence in schools

President Joe Biden’s administration released a proposal Thursday that would provide stronger protections against sex and gender discrimination on college campuses, as well as for anyone who claims they were the victim of sexual assault on campus. 

The changes seek to overhaul a federal rule known as Title IX, which mandates federal regulations that affect men’s and women’s college athletics teams, how universities investigate sexual assault on their campuses and protections for transgender or gay students. Title IX marked its 50th anniversary Thursday.

The newly proposed rules are a reversal from regulations under President Donald Trump that required hearings on sexual violence accusations and limited the type of incidents universities could respond to.

“It’s the Department of Education’s responsibility to ensure all our students can learn, grow and thrive in school,” Education Secretary Miguel Cardona said Thursday morning while presenting the proposal. “No matter where they live, who they are, who they love or how they identify.” 

Advocates for survivors of sexual assault said the Trump-era rules impede victims from reporting their experiences. Defenders of the rules introduced under Trump’s education secretary, Betsy DeVos, said they offer formal protections to people, often men, accused of sexual assault or harassment. 

Many advocates criticized the DeVos rules for requiring universities to hold hearings to adjudicate incidents of sexual assault or harassment on campus. The Biden rules seek to do away with that requirement. Under the proposal, universities may still hold such hearings, but they would have to allow those involved to participate remotely. The Education Department retained some of the DeVos-era rules, such as allowing schools to informally settle cases of sex discrimination.  

Advocates for survivors of sexual assault praised the proposed rules for their protections for students. 

“These necessary revisions will help restore the efficacy of Title IX as a crucial tool for combating campus sexual assault, sexual harassment and other forms of sex-based discrimination on college campuses,” said Kenyora Parham, executive director of End Rape On Campus, a national advocacy group. “Campus sexual assault is a public health crisis that needs to be addressed swiftly and intentionally.”

Others expressed concerns about how the rules would affect people accused of committing sexual assault. 

Samantha Harris, a partner at Allen Harris Law, a firm with offices in Connecticut and Pennsylvania, has represented students in hearings. She said the new rules would allow universities to adopt practices that would violate students’ due process rights, such as disciplinary hearings that don’t require cross-examination. 

“Student conduct procedures should be aimed at maximizing the chances that the truth will be uncovered and an accurate result reached,” Harris said. “Live hearings with cross-examination – which the Supreme Court has called ‘the greatest legal engine ever invented for the discovery of truth’ – are essential to the accuracy of these proceedings.”

She said she expects universities to drop hearings and cross-examinations should the rules be adopted. Harris said she also expects an “explosion of litigation” from students that were “denied due process and basic fairness by their universities.” 

What protections will be offered to transgender students? 

The Biden administration has said Title IX prohibits discrimination on the basis of sexual orientation and gender identity, and the new rules would codify those protections. 

The Education Department headed by Miguel Cardona issued guidance stating that Title IX prohibits discrimination on the basis of sexual orientation and gender identity.

The regulations would “make clear that preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX, except in some limited areas set out in the statute or regulations.”

The administration didn’t address whether transgender athletes could compete on the team of their choosing.  The Education Department plans to start a separate process to decide whether it “should amend the Title IX regulations to address students’ eligibility to participate on a particular male or female athletics team.” 

Fatima Goss Graves, president and CEO of the National Women’s Law Center, praised the rules but called on the administration to “move quickly to affirm the ability of trans students to fully participate in sports.” 

Eighteen states have laws that restrict transgender athletes from competing in sports consistent with their gender. Some groups are mounting their opposition to the proposed changes, including Parents Defending Education, a conservative-leaning advocacy group. 

“From rolling back due process protections to stomping on the First Amendment to adding ‘sexual orientation and gender identity’ into a statute that can only be so changed by congressional action, the Biden administration has shown that they place the demands of a small group of political activists above the concerns of millions of families across the country,” said Nicole Neily, the group’s president. 

Biden instructed the Education Department to review the Title IX policies last year and condemned the Trump-era rules as a “green light to ignore sexual violence and strip survivors of their rights.”

These rules aren’t final. They’ll be open to public comment before the Education Department issues its final regulations. Whatever their final form, the revisions would make it the third time over the past three administrations that the federal rules around sexual misconduct on campuses changed. 

It would probably take months for the rules to go into effect. DeVos introduced her draft Title IX rules in 2018, but they didn’t go into effect until 2020. 

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