Biden administration Title IX overhaul seeks to extend protections to transgender students

The Biden administration proposed Thursday sweeping changes to Title IX on the anti-discrimination law’s 50th anniversary, seeking to fold gender identity into the definition of sex and roll back Trump-era due process protections in campus-assault cases.

The proposed changes unveiled by Education Secretary Miguel Cardona would add “sexual orientation, gender identity and sex characteristics” to the 1972 law prohibiting discrimination in education based on sex.

“Our proposed changes would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone, and make clear those protections include discrimination based on sexual orientation and gender identity,” said Mr. Cardona in his remarks.

He acknowledged the heated debate over male-to-female transgender athletes, saying that the department “recognizes that standards for students participating on male and female athletic teams are evolving in real time.”

“That’s why we’ve decided to do a separate rulemaking on how schools may determine eligibility, while upholding Title IX’s nondiscrimination guarantee,” Mr. Cardona said.

The proposed rule takes aim at the 2020 campus sexual-assault overhaul spearheaded by former Education Secretary Betsy DeVos increasing protections for student defendants, such as requiring schools to declare whether they are using the “preponderance of the evidence” or “clear and convincing evidence” standard.

“The proposed amendments will restore crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination — a critical safety net for survivors that was weakened under previous regulations,” said the Education Department.

The widely anticipated rulemaking drew immediate pushback from conservatives and others alarmed about the prospect of male-born students in women’s scholastic athletics, categories and public accommodations.

“On this 50th anniversary of Title IX, when we are proud to celebrate the accomplishment of millions of women across the country, the Biden Administration outrageously offers new regulations that would redefine sex, equating gender identity with biological reality,” said Penny Nance, president and CEO of Concerned Women for America. “What a slap in the face women who have achieved so much, Biden has just erased you.”

Nicole Neily, president of Parents Defending Education, said “families should be deeply concerned about the proposed rewrite of Title IX.”

“From rolling back due process protections to stomping on the First Amendment to adding ‘sexual orientation and gender identity’ into a statute that can only be so changed by Congressional action, the Biden Administration has shown that they place the demands of a small group of political activists above the concerns of millions of families across the country,” she said.

If approved, the proposed regulations could set up a challenge to the 18 states that have banned biological males who identify as female from female scholastic athletics.

Cheering the Biden administration were LGBTQ advocates such as the National Center for Lesbian Rights, which called the proposed changes “the most robust protections ever against discrimination on the basis of sexual orientation or gender identity.”

“NCLR applauds the administration’s proposal to update Title IX regulations to include historic protections for LGBTQ students,” said NCLR executive director Imani Rupert-Gordon. “Since his election,  [the] President has been uncompromising in his commitment to do everything in his power to protect LGBTQ Americans from discrimination in every facet of their lives – including education.”

The Human Rights Campaign called the proposed changes “a significant and welcome step in ensuring all students have a place to learn free from sexual harassment, assault and discrimination.”

On the other side was American Principles Project President Terry Schilling, who warned that the proposed rules threaten the “free speech rights of teachers, who could be forced to use all manner of absurd pronouns or else risk being accused of harassment and discrimination.”

The Alliance Defending Freedom said the department “interprets Title IX of the Civil Rights Act in a manner inconsistent with the plain meaning of that law to illegitimately inject it with the administration’s political preferences, thereby disregarding a wide range of constitutionally protected freedoms.”

The department cited the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII protects transgender employees against discrimination, an opinion that critics have accused the administration of misapplying to Title IX.

Mr. Cardona called the proposed changes “personal to me, as an educator and a father.”

“I want the same opportunities afforded to my daughter, and my son, and my transgender cousin, so they can achieve their potential and reach their dreams,” he said.

The proposed regulations will be open for public comment for 60 days after being published in the Federal Register.

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