Schools are adopting new rules on transgender students and sexual assault. Here’s what’s coming.

Cardona’s groundbreaking decision to codify sexual orientation and gender identity protections in Title IX could spark a fight just as divisive as DeVos’ rule, which drew more than 124,000 write-in comments during the regulatory process and attracted five lawsuits. His rule, which took effect in August 2020, narrowed the definition of sexual harassment and ordered schools to conduct live hearings with cross-examination for sexual misconduct investigations.

Among Democrats, Cardona’s proposed rule would be a shield for already marginalized children seeking inclusion, but for Republicans, it’s a spearhead of advancing “wokeism” trying to meet the needs of a small minority of children.

“The Supreme Court has upheld the right of LGBTQ+ people to live and work without fear of harassment, exclusion and discrimination – and our LGBTQ+ students have the same rights and deserve the same protections,” Cardona said in a statement. communicated when his department first announced its interpretation of the rule.

Cardona’s rule will not go into effect for several months, until the regulatory process takes its course. But lawsuits from Republican attorneys general and conservative groups are inevitable.

Republican governors and GOP-controlled legislatures have advanced laws and policies over the past year that allow for the investigation of parents who seek gender-affirming care for their children and prohibit transgender people from use bathrooms that match their gender identity. More than a dozen conservative states have laws restricting sports participation for transgender athletes, and several more states are pushing the finish line. Many cited the Biden administration’s early interpretation of Title IX protections for transgender students as a key motivating factor in what kicked off a year of conservative gender-focused legislation.

Here are the five biggest issues to watch out for:

New Territory on Transgender Students

Officials from the Ministry of Education last June announced transgender students are covered by Title IX, a return to Obama-era anti-discrimination protections for the band after several years without it. In 2017, DeVos dropped an Obama-era directive to protect the rights of transgender students under this law.

The Biden administration’s interpretation of the law, which includes a prohibition on discriminating against someone on the basis of sexual orientation and gender identity, should be formally enshrined in the regulations. A draft of Cardona’s Title IX proposal, published by The Washington Post in March, stated, “Sex discrimination includes discrimination based on gender stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, gender orientation and identity.

Legal challenges are trying to prevent the application of the department’s latest interpretation, which is based on the landmark Supreme Court decision in Bostock v. County of Clayton and abides by an executive order issued by President Joe Biden that said the court case regarding transgender rights in the workplace applies to Title IX.

What this could mean for sexual misconduct investigations

Victim advocacy groups have argued that the DeVos Rule weakens protections for survivors of misconduct and has deterred them from reporting incidents because of its narrow definition of sexual harassment. Cardona’s rule should be friendlier to those who report sexual misconduct.

For decades, the Department of Education has defined sexual harassment as any “undesirable behavior … of a sexual nature,” according to the National Women’s Law Center, which sued the 2020 rule. But DeVos’ regulations, according to the center , requires schools to dismiss complaints unless the harassment is “so severe, pervasive, and objectively offensive that it effectively deprives a person of equal access to the recipient’s educational program or activity.”

Conservative parent groups, however, say the department will “erode due process” for students accused of misconduct.

“There is simply no demonstrable reason to eliminate a set of due process rules that maintain the fundamental protections of our legal system that, once implemented, were absolutely necessary to remedy a pattern of abuse well documented – abuses that will return if these rules are overturned,” groups including Parents Defending Education and Moms for Liberty wrote in a letter to Cardona.

Title IX experts say the fear of reporting deterrence is not unfounded, as they have seen a decrease in the number of formal complaints filed with schools due to what they describe as an arduous reporting process. . They are looking for common ground in the third change in three administrations.

Title IX administrators at the school are watching to see if the department will maintain the “prescriptive approach” of the DeVos era, said Brett Sokolow, president of the Association of Title IX Administrators. “Or if we go back more to the Obama-era discretionary approach for administrators, where regulations offered guardrails, but the school fills in the details between them.”

“Right now the regulations not only tell you what guardrails are, they tell you exactly how to pave the road and how to drive on the road,” he added.

Expect Lawsuits

The provision codifying protections for transgender students draws the most ire from conservative state attorneys general who say it would conflict with state laws. More than a dozen states have laws restricting transgender athletes, and several more states are in the process of implementing their own measures.

A Republican-led coalition of states, led by Tennessee Attorney General Herbert Slatery, is suing to stop the Department of Education from enforcing its interpretation of Title IX, which prohibits discrimination based on identity gender and sexual orientation.

The 20 attorneys general argued that their states face a “credible threat” of losing significant federal funding due to policies and laws prohibiting transgender students from playing on sports teams, using locker rooms and halls. bathrooms or to stay in university residences corresponding to their gender identity.

A hearing was held in November, but there is no decision yet.

Last month, fifteen conservative attorneys general vowed to prosecute and also called on the Biden administration to halt its rewrite of Title IX to “redefine biological sex to include gender identity.” They urged Civil Rights Office Assistant Secretary Catherine Lhamon, who led the office during President Barack Obama’s second term, to recuse herself from the Title IX rewrite process.

When the rule will come into effect

Cardona said the rule is expected in May. Meetings with the White House are scheduled through mid-May, although the Department of Education does not have to wait until all meetings have taken place to release the proposal.

It will take several months for the regulatory process to unfold, and a final rule is not likely until next year, advocacy groups say. In most cases, the public has a 30 to 60 day comment period after the ministry’s proposal is filed.

Cardona released a 67-page question-and-answer document last year on how schools should navigate the rule, which is still in effect during the exam period.

How does Congress fit in

House Republicans, led by Rep. Jim Banks (R-Ind.), are already pushing to ban transgender athletes from playing on sports teams that match their gender identity.

Transgender women have been allowed to compete in women’s sports at the Olympics since 2003. But the NCAA recently updated its policy on the participation of transgender athletes this year, giving each sport’s national governing body its own ability to determine the eligibility conditions.

More than 100 House Republicans have signed a petition to unload the Protection of Women and Girls in Sport Actwhich was presented by Rep. Greg Steube (R-Fla.) in January 2021 and has not been taken up by the House Education and Labor Committee.

Although Banks is highly unlikely to get the 218 signatories he needs to force a floor vote on the bill, which attempts to define sex in Title IX as “based solely on reproductive biology and genetics of a person at birth”, his decision demonstrates a conservative appetite. to keep the issue before voters in an election year.

The midterm election could also play a role in the viability of Title IX rule. The longer it takes the agency to implement Cardona’s Title IX rule, the more likely a future GOP majority in Congress could use the Congressional Review Act, which gives lawmakers 60 days legislation to overrule key rules issued by federal agencies.


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