A Biden administration plan to overhaul how schools respond to sexual misconduct complaints and extend federal protections to some of the most vulnerable students is coming as soon as this month — and partisan combat is certain to follow in its wake.
Along with casting off many Trump-era guidelines Biden officials say are too arduous for assault victims, Education Secretary Miguel Cardona is expected to codify safeguards for transgender students for the first time, handling both issues in the same rule.
By revising Title IX, the federal education law that prohibits sex-based discrimination, Cardona will be undoing a key legacy of former Education Secretary Betsy DeVos. He’ll also be leaving his own mark on what is perhaps the agency’s most closely watched initiative and its biggest legal target.
Cardona’s groundbreaking move to codify protections for sexual orientation and gender identity in Title IX could set up a fight that’s just as divisive as DeVos’ rule, which drew more than 124,000 written comments during the regulatory process and attracted five lawsuits. Her rule, which took effect in August 2020, narrowed the definition of sexual harassment and directed 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 kids looking for inclusion, but for Republicans, it’s a spear of advancing “wokeism” that’s trying to cater to a small minority of kids.
“The Supreme Court has upheld the right for 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 when his department first announced its interpretation of the rule.
Cardona’s rule won’t take effect for several months, until the regulatory process runs 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 permit investigating parents who seek gender-affirming care for their kids and bar transgender people from using bathrooms that match their gender identity. More than a dozen conservative states have laws restricting sports participation for transgender athletes, with several more states in the process of getting their measures across the finish line. Many of them have cited the Biden administration’s early interpretation of Title IX’s protections for transgender students as a key motivator of what kicked off a year’s worth of gender-focused conservative legislation.
Here are the five biggest issues to watch:
New territory on transgender students
Education Department officials last June announced transgender students are covered under Title IX, a return to Obama-era discrimination protections for the group after several years without it. In 2017, DeVos scrapped an Obama-era directive aimed at protecting transgender students’ rights under that law.
The Biden administration’s interpretation of the law, which includes a prohibition on discriminating against someone based on sexual orientation and gender identity, is expected to be formally written into the regulation. A draft of Cardona’s Title IX proposal, which The Washington Post reported in March, said: “Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation and gender identity.”
Legal challenges are trying to halt the enforcement of the department’s latest interpretation, which is based on the landmark Supreme Court ruling in Bostock v. Clayton County and makes good on an executive order issued by President Joe Biden that said the court case about transgender rights in the workplace applies to Title IX.
What this could mean for sexual misconduct investigations
Victims’ advocacy groups have argued the DeVos rule weakens protections for survivors of misconduct and has deterred them from reporting incidents due to its narrow definition of sexual harassment. Cardona’s rule is expected to be friendlier to those who report sexual misconduct.
For decades, the Education Department had defined sexual harassment as any “unwelcome … conduct of a sexual nature,” according to the National Women’s Law Center, which sued over the 2020 rule. But DeVos’ regulation, the center argued, forces schools to dismiss complaints unless the harassment is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
Conservative parents’ groups, however, say the department will be “eroding due process” for students who are accused of misconduct.
“There is simply no demonstrable reason to eliminate a set of due process rules that uphold the fundamental protections of our legal system that, when implemented, were badly needed to remedy a well-documented pattern of abuses — abuses that will return if these rules are rescinded,” groups, including Parents Defending Education and Moms for Liberty, wrote in a letter to Cardona.
Title IX experts say the fear of deterrence from reporting isn’t unfounded as they’ve seen a decrease in the number of formal complaints filed with schools because of what they describe as an arduous reporting process. They are looking for middle ground during the third change in three administrations.
School Title IX administrators are watching to see whether the department will maintain the DeVos-era “prescriptive approach,” said Brett Sokolow, president of the Association of Title IX Administrators. “Or whether we return to more of the Obama-era approach of discretion for administrators, where the regs offered guardrails, but the school is filling in the details in between those.”
“Right now, the regs not only tell you what the guardrails are, they tell you exactly how to pave the road and how to drive down the road,” he added.
The provision codifying protections for transgender students is drawing the most ire from conservative state attorneys general who say it would clash with their state laws. More than a dozen states have laws restricting transgender athletes, and several more states are in the process of getting their own measures in place.
A coalition of Republican-led states, headed by Tennessee Attorney General Herbert Slatery, is suing to bar the Education Department from enforcing its interpretation of Title IX, which prohibits discrimination based on gender identity and sexual orientation.
The 20 attorneys general argued their states face a “credible threat” of losing significant federal funding due to policies and laws that prohibit transgender students from playing on sports teams, using locker rooms and bathrooms, or staying in residence halls that match their gender identity.
A hearing was held in November, but there hasn’t been a decision yet.
Fifteen conservative attorneys general last month vowed to sue and also called on the Biden administration to stop its rewrite of Title IX to “redefine biological sex to include gender identity.” They’ve urged Assistant Secretary for the Office for Civil Rights 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 take effect
Cardona has said the rule is expected in May. Meetings with the White House are scheduled through mid-May, though the Education Department does not have to wait until all the meetings have taken place to release the proposal.
It will take several months for the regulatory process to unfold, and a final rule isn’t likely until next year, advocacy groups say. In most cases, the public is given a 30- to 60-day comment period after the department’s proposal drops.
Cardona issued a 67-page question-and-answer document last year on how schools should navigate the rule, which is still in effect during the review period.
How Congress fits in
Transgender women have been allowed to compete in women’s sports in the Olympics since 2003. But the NCAA recently updated its policy on the participation of transgender athletes this year, giving the national governing body for each sport its own ability to determine eligibility requirements.
More than 100 House Republicans have signed on to a petition to discharge the Protection of Women and Girls in Sports Act, which was introduced by Rep. Greg Steube (R-Fla.) in January 2021 and has not been taken up by the House Education and Labor Committee.
While Banks is highly unlikely to get the 218 signers he needs to force a floor vote on the bill, which attempts to define sex in Title IX as “based solely on a person’s reproductive biology and genetics at birth,” his move demonstrates a conservative appetite to keep the issue in front of voters in an election year.
The midterm election could also play a role in the Title IX rule’s viability. 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 legislative days to overturn major rules issued by federal agencies.