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Biden Administration Releases Revised Title IX Rules

The Biden administration issued new rules Friday strengthening protections for LGBTQ students under federal law and rolling back a number of Trump-era policies that dictated how schools should respond to cases of alleged sexual misconduct in primary and secondary schools and university campuses.

The new rules, which take effect Aug. 1, effectively expanded the scope of Title IX, the 1972 law prohibiting sex discrimination in federally funded educational programs. They expand the scope of the law to prohibit discrimination and harassment based on sexual orientation and gender identity, and expand the range of sexual harassment complaints that schools will be responsible for investigating.

“These regulations make clear that everyone can access schools that are safe, welcoming and respect their rights,” Miguel A. Cardona, the Secretary of Education, said in a call with reporters.

The rules fulfill a key campaign promise for Mr. Biden, who has said he would put a “swift end” to Trump-era Title IX rules and has faced growing pressure from Democrats and civil rights leaders to do it.

The release of the updated rules, after two delays, came as Mr. Biden is in the thick of his re-election campaign and trying to galvanize key voting districts.

Thanks to the new regulations, the administration has decided to include students in its interpretation of the Bostock v. Clayton County, the landmark 2020 Supreme Court case in which the court ruled that the Civil Rights Act of 1964 protects gay and transgender workers from discrimination in the workplace. The Trump administration has deemed transgender students unprotected under federal law, including after the Bostock ruling.

In a statement, Betsy DeVos, who served as Mr. Trump’s education secretary, criticized what she called a “radical rewrite” of the law, saying it was an “effort born entirely about progressive politics, and not about healthy politics.”

Ms. DeVos said the inclusion of transgender students in the law destroyed decades of protections and opportunities for women. She added that the Biden administration is also “seeking an about-face back to the bad old days when sexual misconduct was referred to campus kangaroo courts, without being resolved in a way that actually achieved justice.”

While the regulations released Friday contained significantly stronger protections for LGBTQ students, the administration sidestepped the thorny question of whether transgender students should be able to play on school sports teams matching their gender identity.

The administration stressed that while, overall, exclusion based on gender identity violated Title IX, the new regulations did not extend to single-sex residence halls or sports teams. The Department of Education has a second rule regarding gender eligibility for men’s and women’s sports teams. The rulemaking process attracted more than 150,000 comments.

According to the revisions announced Friday, cases in which transgender students are subjected to a “hostile environment” through bullying or harassment, or face unequal treatment and exclusion in programs or institutions in because of their gender identity, could trigger an investigation by the department’s Civil Affairs Bureau. Rights.

Instances where students are repeatedly referred to by a name or pronoun other than their chosen one could also be considered harassment on a case-by-case basis.

“This is a bold and important statement that transgender and non-binary students belong in their schools and in their communities,” said Olivia Hunt, policy director of the National Center for Transgender Equality.

The regulations certainly seemed to spark legal challenges from conservative groups.

May Mailman, director of the Independent Women’s Law Center, said in a statement that the group plans to sue the administration. She said it was clear that the law prohibiting discrimination based on “sex” meant “binary and biological.”

“The illegal omnibus regulation reinvents Title IX to enable the invasion of women’s spaces and the reduction of women’s rights in the name of increased protection of “gender identity,” which is contrary to the text and to the purpose of Title IX,” she said.

The existing rules, which took effect under Mr. Trump in 2020, were the first time sexual assault provisions were codified under Title IX. They strengthened the due process rights of accused students, relieved schools of some legal responsibilities, and established rigid parameters for how schools must conduct impartial investigations.

These measures are a stark departure from the Obama administration’s interpretation of the law, which took the form of unenforceable guidance documents ordering schools to step up investigations into sexual assault complaints or risk losing federal funding. Many students accused of sexual assault have won cases against their universities for violating their due process rights under the guidelines.

The Biden administration’s rules struck a balance between the goals of the Obama administration and the Trump administration. Overall, the settlement provides significantly more flexibility in how schools conduct their investigations, something advocates and schools have long called for.

Catherine E. Lhamon, head of the department’s Office of Civil Rights who also served in that role under President Barack Obama, called the new rules “the most comprehensive coverage under Title IX since the regulations were promulgated for the first time in 1975.

They replaced a narrower definition of sexual harassment adopted under the Trump administration with one that would include a broader range of behaviors. And they rolled back the requirement that schools only investigate incidents that allegedly occurred on their campuses or in their programs.

Still, some key provisions of the Trump-era rules were preserved, including one allowing informal resolutions and another barring sanctions against students until an investigation is complete.

Among the most anticipated changes was the reversal of a provision that required in-person, or so-called live, hearings in which students accused of sexual misconduct, or their attorneys, could confront and question accusers in a formal setting. similar to that of a courtroom.

The new rules allow in-person hearings, but do not require them. They also require a process by which a decision-maker could assess the credibility of a party or witness, including by asking questions of the opposing party.

“The new regulations end unfair and traumatic complaints procedures that favor harassers,” Kel O’Hara, senior attorney at Equal Rights Advocates. “Student survivors will no longer be subjected to processes that prioritize the interests of their abusers over their own well-being and safety. »

The new rules also allow schools to use a “preponderance of evidence” standard, a lower burden of proof than encouraged by the DeVos-era rules, whereby administrators must only determine whether it is more likely unlikely that sexual misconduct occurred. .

The new push for the standard drew criticism from legal groups who said the rule removed hard-won protections against erroneous conclusions.

“When you’re facing charges involving one of the most heinous crimes a person can commit – sexual assault – it’s not enough to say ’50 percent and a feather’ before convicting someone of this disgusting crime,” said Will Creeley, the legal director of the Foundation for Individual Rights and Expression.

The changes conclude a three-year process during which the department received 240,000 public comments. The rules also strengthen protections for pregnant students, requiring accommodations such as a larger desk or ensuring elevator access and prohibiting exclusion from activities due to additional needs.

Title IX was designed to end sex discrimination in educational programs or activities at all institutions receiving federal financial assistance, starting with athletic programs and other spaces previously dominated by male students.

The effects of the original law have been pronounced. Far beyond the impact on school programs like sports teams, many educators credit Title IX with paving the way for academic parity today. Female students generally outnumber males on campus and have become more likely than males of the same age to earn a four-year degree.

But since its inception, Title IX has also become a powerful vehicle through which past administrations have sought to guide schools to respond to the dynamic and diverse nature of schools and universities.

While civil rights groups were disappointed that some ambiguity remained for LGBTQ students and their families, the new rules were widely praised for taking a stand at a time when debates over education recall backlash. negative after the Supreme Court ordered schools to integrate.

More than 20 states have passed laws that generally prohibit anyone male at birth from playing on girls’ or women’s sports teams or participating in school sports programs, while 10 states have laws prohibiting people transgender people to use the restroom because of their gender identity.

“Some adults are coming forward and saying, ‘I’m going to make school harder for kids,'” said Liz King, senior director of the education equity program at the Leadership Conference on Civil and Human Rights. “This is an incredibly important rule, at an incredibly important time.”

Schools will have to cram in over the summer to implement the rules, which will require retraining staff and overhauling procedures implemented just four years ago.

Ted Mitchell, president of the American Council on Education, which represents more than 1,700 colleges and universities, said in a statement that while the group welcomed the changes to the new rule, the timeline “does not account for the difficulties inherent in implementing these changes in our territory.” campuses across the country in such a short time.

“After years of constantly evolving Title IX guidance and regulations,” Mr. Mitchell said, “we hope, for the sake of students and institutions, that there will be more stability and consistency in the requirements in the future.”

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