WASHINGTON – The Biden administration on Thursday proposed new rules governing how schools should respond to gender discrimination, rolling back large parts of a Trump administration policy that narrowed the scope of on-campus sexual assault investigations and cemented transgender students’ rights in the law.
The proposal would revise an expansive rule concluded under former Education Minister Betsy DeVos, which for the first time codified how colleges and K-12 schools are investigating sexual assault on campus. The proposal will also address discrimination under Title IX, the federal law signed 50 years ago today, which prohibits the exclusion or denial of education on the basis of gender in federally funded programs.
The Trump administration rules, passed in 2020, narrowed the definition of sexual harassment, extended court trials for students accused of harassment and abuse, exempted schools from some legal obligations, and required schools to hold court-like procedures called “live hearings” that allowed cross-examination of parties. Ms DeVos’ rules did not define “gender-based harassment” per se, and the administration had taken the position that section IX did not extend to gender identity.
The Biden administration maintained that the current rules “weakened the protection of survivors of sexual assault and diminished the promise of an education free from discrimination.”
“Our proposed changes will fully protect students from all forms of gender discrimination,” Education Minister Miguel A. Cardona said in comments Thursday morning, adding that the new rule would “make it clear that these protections cover discrimination based on sexual orientation and gender identity. . “
The proposal would certainly create a clash with state and federal lawmakers and draw legal action from conservative groups that had begun to hamper the department’s position issued last year that transgender students were protected under federal law.
The proposed Biden rules, which must go through a long public comment period before they enter into force, will 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 programming, that schools are required to investigate. The rules would also make direct hearings optional, no longer a requirement, and allow schools to apply a process that establishes the credibility of the parties and witnesses, even if it does not require cross-examination.
But one of the major changes to the Biden rule is the inclusion of sex-based harassment to include “stereotypes, gender characteristics, pregnancy or related conditions, sexual orientation and gender identity,” according to the proposed rules.
The department will issue a separate regulation on how section IX applies to athletics, including how schools should determine a student’s eligibility to participate in a male or female athletics team.
The issue has become a cultural war hotspot in the past year, as Republican-dominated lawmakers in at least 18 states have imposed restrictions on transgender people’s participation in public school sports, and at least a dozen states have passed laws with some restrictions.
“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” said Dr. Cardona. “And so we decided to make a separate rule formulation on how schools can determine eligibility while maintaining Title IX’s non-discrimination guarantee.”
“I certainly reject efforts to politicize these protections and saw division in our schools,” he added.