(Gender) Identity Crisis: The Tumultuous Battle Over Title IX (Bulat Silvia/Dreamstime.com)
By Micah Hart | Thursday, 30 June 2022 04:38 PM EDT
2022 marks 50 years since Title IX, which prohibits federally funded schools from sex-based discrimination, became law. On June 23, the 50th anniversary of Title IX, the Biden administration released a draft proposal of its recommended changes to the landmark legislation.
The proposal seeks to revise several of the regulations enforced during the Trump administration and initially put forth by then-Secretary of Education Betsy DeVos.
Those against the measures, including SAVE — a group focused on "ensuring fairness and due process on campus" —have several concerns with the proposed rules.
SAVE outlined five core concerns: Due process, free speech, women's sports, parental rights, and bathroom and locker room access.
The new proposal redefines sex discrimation to include: "sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity."
Fifteen attorneys general formerly raised concerns about the rulemaking of Title IX occurring in the current administration.
Prior to the new regulations, the attorneys general, on April 5, penned a letter to Catherine Lhamon, assistant secretary for Civil Rights at the Department of Education, in both the Obama and Biden administrations.
The attorneys generals said:
"Statutory and regulatory text and structure, contemporaneous Supreme Court authorities, and the U.S. Department of Education's historic practice demonstrate that the ordinary public meaning of the term 'sex' at the time of Title IX's enactment could only have been biological distinctions between male and female. A person's biological sex is relevant for Title IX considerations involving athletics, and distinctions based on sex are permissible (and may be required) because the sexes are — simply — not similarly situated."
One of the biggest blows to the Trump administration's Title IX regulations is the return to a much broader definition of sexual harassment.
Formerly, the Trump administraiton focused on two areas of sexual harrassment: quid pro quo (sexual favors that had to happen only once to be reported as harassment) and unwelcome harassment, according to the libertarian news outlet Reason.
The Trump administration cited Davis v. Monroe to justify that unwelcome harassment must be "'so severe, pervasive, and objectively offensive' that it effectively denies a person equal access to education."
The new definition seeks to upend this by broadening the scope of how the term is defined.
In the Biden proposal, this includes: "conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person's ability to participate in or benefit from the recipient's education program or activity (i.e., creates a hostile environment)."
In a press release, SAVE said: "This broad definition means that any comment or gesture that is 'subjectively' offensive could trigger a Title IX complaint, and is certain to curtail campus free speech."
The proposed regulations also seek to change the judicial process of hearings and how cases are brought regarding sex-based discrimination.
The new plan will also do away with the requirement for live hearings and cross-examination. Instead, the draft says:
"The proposed regulations would enable recipients to tailor procedures to be effective at addressing sex discrimination in their educational environment by providing an option to conduct live hearings with cross-examination or have the parties meet separately with the decisionmaker and answer questions submitted by the other party when a credibility assessment is necessary."
The Biden proposal will also allow for a single-investigator approach.
In a single-investigator approach, a lone official can serve as the investigator and decision-maker. Some suggest that it violates an individual's right to due process, outlined in the 14th Amendment.
In an analysis of the judicial decisions that supported the 2020 Title IX regulations, SAVE wrote:
"Courts have imposed several requirements (e.g., live hearings, cross examination) that cannot be contravened. In order to protect students and to give universities clear and consistent direction on what is required in this context, OCR should preserve the 2020 Regulations' protection of due process generally, and specifically as they protect students' right to a live hearing and cross examination"
Edward E. Bartlett, founder of SAVE, former faculty member at three universities and former federal regulator at the Department of Health and Human Services, told Newsmax: "An accused person has the right to be informed of specific allegations. Both parties get to look at the evidence."
While there is opposition, the Department of Education, in a press release, said:
"The regulations will require that all students receive appropriate supports in accessing all aspects of education. They will strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity. And they will require that school procedures for complaints of sex discrimination, including sexual violence and other sex-based harassment, are fair to all involved.
"The proposed regulations also reaffirm the Department's core commitment to fundamental fairness for all parties, respect for freedom of speech and academic freedom, respect for complainants' autonomy, and clear legal obligations that enable robust enforcement of Title IX."
The regulations will be open for public comment upon being published by the Federal Register. Individuals have 60 days to make comments on the regulations.
In their April 5 letter, the attorneys generals shed light on Biden's decision, saying: "One of Title IX's crucial purposes, for example, is protecting athletic opportunity for women and girls. Adding gender identity to the definition of 'sex' in Title IX would have a detrimental effect on the great strides made over the last 50 years to create equal athletic opportunity."
Micah Hart, a Newsmax intern, is studying politics and journalism at Hillsdale College in Michigan.