Biden has expanded protection for sexual harassment, LGBTQ students

The Biden administration on Thursday proposed major changes to Title IX that would make it easier to report potential harm to victims of sexual harassment and expand student protections based on sexual orientation and gender identity, overturning many of the current regulations created by former President Trump.

The new rule extends the definition of sexual harassment that was narrowed down by the Trump administration, as well as eliminating the need for private hearings and cross-examination.

“This is a step forward — it has stronger provisions for both complainants and respondents and more specific responsibilities for the organization,” said S. Daniel Carter, president of educational campus security advisers.

Title IX of the 1972 Education Amendment protects students, teachers, and staff from gender-based discrimination in federally funded educational activities. The administration’s 700-page proposal was unveiled at the law’s 50th anniversary and will exceed the 60-day comment period before it can take effect.

Terry Hartle, senior vice president of public relations and public affairs at the American Council on Education, said, “When it comes to government regulations, specific words and descriptions are everything.” Comments will attract parties and parties. “

It is expected that the proposed rules will receive pushback from conservatives, who have long been concerned about the protection of the due process rights of students accused in the Title IX case. Critics of former Education Secretary Betsy Davos ‘repeat of the law say it has gone too far in defending respondents’ rights and has had a cooling effect that prevents many from reporting due to the complex and lengthy hearing process.

Legal battles are also expected over issues related to transgender students, including pronouns and bathroom use and participation in sports.

Due to the ongoing legal battle over transgender students’ involvement in athletics, the department will conduct a separate rule-making process focusing on student athletics.

Expanding the definition of sexual harassment

The Biden administration has proposed a new definition of sexual harassment that now includes not only sexual harassment but also sexual orientation, gender identity, pregnancy and any situation that creates an “unfavorable environment”.

It also throws out the Trump-era definition that harassment must be “so serious, widespread and purposefully offensive” that many consider it a very high standard, returning to the pre-2020 standard of “severe or widespread”.

Tracy Vichers, executive director of It’s on U, an anti-sexual violence organization, said that under the proposed rules, “one example is enough to tell a student what happened, where under the current rules, the Trump administration, in many cases, ongoing and increasing sexual violence against a student.” Or experience harassment in order for the school to take action. “

In addition, the proposed regulations require colleges to respond to incidents of sexual harassment that occur off-campus in educational programs or in study programs abroad, such as abroad. The 2020 rules only cover incidents of sexual harassment occurring on campus Most campus employees now also have to report any incidents of harassment to Title IX officers.

Changes to investigations and hearings

One of the most criticized aspects of the Trump-era version of Title IX was the need for cross-examination and personal hearing, which many critics said was complex and traumatic for victims.

Colleges will not be required to use cross-examination or private hearings when conducting a formal investigation into Thursday’s proposal. This will require colleges to choose to offer a virtual alternative to using hearings in their grievance process so that students do not have to live in the same room they are accusing when they bring a harassment claim.

The proposal gives complainants more flexibility in reporting incidents of sexual harassment, including an example of sexual harassment and allowing them to file a complaint after leaving college due to their ability to follow an informal complaint process without submitting an official report.

Sharin Potter, a professor of Women and Gender Studies at the University of New Hampshire, says many girls who have been sexually harassed drop out of college because of the damage they have suffered and that the new law will “empower” victims because “when they leave, the door is closed on them.” No. “

The proposal further requires that colleges complete the investigation “within the prompt time frame” and that Title IX coordinators are in regular contact with both the complainant and the respondent regarding the status of the case. The previous rules, many said, kept both parties in the dark about the status of their case, which can sometimes take up to a year to resolve.

Critics of the proposed rules are concerned about how rollbacks to hearing procedures, particularly the elimination of cross-examination requirements and changes in the quality of evidence, would affect an accused student’s right to due process. This is expected to be one of the biggest legal goals of the proposal, especially from conservatives.

North Carolina Republican Senator Richard Barr said in a statement, “The current rule strikes a balance that follows the law and is fair to both parties.

In addition, Joe Cohen, director of legislation and policy at the Foundation for Individual Rights and Expressions, said: “They are giving the green light to all sorts of vulnerable practices that are likely to lead to serious violations of the due process rights required to be fundamentally justified.”

Some experts disagree on this point. “This did not exclude all the appropriate procedures for inclusion in the 2020 Regiment. The Department of Education has left some important protections for respondents as well as expanded the protection provided to complainants,” said Brett Sokolo, president of the Association of Title IX Administrators.

An additional area of ​​concern was that the final decision in a case could be made by the Title IX coordinators themselves, which is prohibited under current regulations.

Carter said: “It’s a very bad idea, because blaming a person for all of this can lead to mistakes or bias.”

The removal of many of the Trump-era requirements for hearings and investigations will give colleges more flexibility to create and use their own policies to respond to sexual harassment.

“We’ve moved from a set of rules to a set of policies,” Sokolo said of the new proposal. “These policies give borders or railways but allow a ton more flexibility than 2020 [regulations] It’s about how schools implement practical practices. “

Critics argued that Trump-era regulations imposed much more administrative rules on Title IX coordinators that did not allow them to develop policies to meet their college’s unique needs.

However, this could also raise legal challenges. Alyssa Ray McGinn, vice president of investigation for Dan Shore, an organization that advises colleges on Title IX, says that “returning so much prudence to schools opens the door to systemic inconsistencies across the country,” and that these inconsistencies are likely to lead to legal challenges after implementation. Can give. “

Creating protection for LGBTQ students

Perhaps the most anticipated and controversial aspect of the new proposal is the expansion of protection against discrimination based on sexual orientation and gender identity.

The protections for discrimination based on gender identity and sexual orientation were already included in Title IX when the Biden administration issued a notice of interpretation in June 2021, following the Supreme Court ruling that LGBTQ discrimination was equivalent to gender inequality.

Since then, many colleges have already explained Title IX to include discrimination through this lens, however, the proposal formally codified the rule in the Title IX regulations for the first time in history.

The Obama administration has also issued a notice extending protection for LGBTQ students under Title IX, but the Trump administration has revoked it.

Many hailed the addition as a victory for the LGBTQ community, which faces disproportionately high rates of sexual harassment and abuse.

Diego Sanchez, Director of Advocacy, Policy and Partnerships at Parents, Family and Friends of Lesbians and Guesses (PFLAG) National, said: Gives the mark. Even if a student attends school in a place like Texas or another state that may be harmful, including local law, they will be protected from harassment and discrimination in college. ”

However, the proposed rules did not change the Trump-era expansion into a waiver that many federally funded religious colleges used to bypass the Title IX requirements. In particular, the inclusion of LGBTQ students in Title IX will not only create legal issues related to freedom of speech and freedom of religion, but more applications for religious exemption are expected.

The Religious Responsibility Project said in a statement that the Biden administration “has failed to recognize the needs of some of the most vulnerable LGBTQ + people in America, leaving LGBTQ + students trapped in taxpayer-funded religious educational institutions.”

Due to recent legal challenges regarding the involvement of transgender students in sports, the department will conduct a separate regulation process on how Title IX will apply in athletics.

Transgender students have created a frenzy among Republicans participating in sports teams that are consistent with their gender identity, believing that gender can only be defined in biological terms.

Senior department officials were unable to share details of when the athletics rules-making process will begin.

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