WASHINGTON- The Biden administration on Thursday proposed new rules governing how schools must respond to gender discrimination, reversing key parts of a Trump administration policy that narrowed the scope of sexual misconduct investigations on campuses. and cemented the rights of transgender students into law.
The proposal would revise an expansive rule finalized under former education secretary Betsy DeVos that codified for the first time how colleges and K-12 schools investigate sexual assault on campus. The proposal would also address discrimination under Title IX, the federal law signed 50 years ago today that prohibits the exclusion or denial of educational benefits on the basis of sex in federally funded programs.
The Trump administration’s rules, released in 2020, narrowed the definition of sexual harassment, expanded the due process rights of students accused of harassment and assault, relieved schools of certain legal responsibilities, and required schools to hold courtroom-style proceedings called “live hearings”. which allowed cross-examination of the parties. Ms. DeVos’ rules did not define “gender-based harassment” per se, and the administration had taken the position that Title IX did not extend to gender identity.
The Biden administration has argued that the current rules “weaken protections for survivors of sexual assault and diminish the promise of discrimination-free education.”
“Our proposed changes would fully protect students from all forms of gender discrimination,” Education Secretary Miguel A. Cardona said in remarks Thursday morning, adding that the new rule “would make it clear that these protections include the discrimination based on sexual orientation and gender identity.
The proposal is certain to create a confrontation with state and federal lawmakers and lead to legal action from conservative groups who had begun to protest the department’s position, released last year, that the transgender students were protected by federal law.
The Biden draft regulations, which must go through a lengthy public comment period before taking effect, would revise a number of key provisions related to sexual assault investigations.
The Biden rules expand the definition of what constitutes sexual harassment and expand the types of episodes, such as incidents reported outside of their educational programs, that schools are obligated to investigate. The rules would also make live hearings optional, no longer mandatory, and allow schools to employ a process that establishes the credibility of parties and witnesses, although it does not require cross-examination.
But one of the key changes in the Biden rule is the inclusion of sexual harassment to include “stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity,” according to the rules. proposed.
The ministry will issue separate regulations on how Title IX applies to athletics, including how schools should determine a student’s eligibility to participate in a men’s or women’s athletics team.
The issue has become a flashpoint of the culture war over the past year, as Republican-dominated legislatures in at least 18 states introduced restrictions on transgender participation in public school sports, and at the least a dozen states have passed laws with some restrictions.
“The department recognizes that standards for students competing on men’s and women’s sports teams are changing in real time,” Dr. Cardona said. “And so we’ve decided to make a separate rule about how schools can determine eligibility while still meeting the Title IX non-discrimination guarantee.”
“I strongly reject efforts to politicize these protections and sow division in our schools,” he added.