04/19/24 01:16:00
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04/19 13:14 CDT Biden's new Title IX rules protect LGBTQ+ students, but avoid
addressing transgender athletes
Biden's new Title IX rules protect LGBTQ+ students, but avoid addressing
transgender athletes
By COLLIN BINKLEY
AP Education Writer
The rights of LGBTQ+ students will be protected by federal law and victims of
campus sexual assault will gain new safeguards under rules finalized Friday by
the Biden administration.
The new provisions are part of a revised Title IX regulation issued by the
Education Department, fulfilling a campaign pledge by President Joe Biden. He
had promised to dismantle rules created by former Education Secretary Betsy
DeVos, who added new protections for students accused of sexual misconduct.
Notably absent from Biden's policy, however, is any mention of transgender
athletes.
The administration originally planned to include a new policy forbidding
schools from enacting outright bans on transgender athletes, but that provision
was put on hold. The delay is widely seen as a political maneuver during an
election year in which Republicans have rallied around bans on transgender
athletes in girls' sports.
Instead, Biden is officially undoing sexual assault rules put in place by his
predecessor and current election-year opponent, former President Donald Trump.
The final policy drew praise from victims' advocates, while Republicans said it
erodes the rights of accused students.
The new rule makes "crystal clear that everyone can access schools that are
safe, welcoming and that respect their rights," Education Secretary Miguel
Cardona said.
"No one should face bullying or discrimination just because of who they are,
who they love," Cardona told reporters. "Sadly, this happens all too often."
Biden's regulation is meant to clarify schools' obligations under Title IX, the
1972 women's rights law that outlaws discrimination based on sex in education.
It applies to colleges and elementary and high schools that receive federal
money. The update is to take effect in August.
Among the biggest changes is new recognition that Title IX protects LGBTQ+
students --- a source of deep conflict with Republicans.
The 1972 law doesn't directly address the issue, but the new rules clarify that
Title IX also forbids discrimination based on sexual orientation or gender
identity. LGBTQ+ students who face discrimination will be entitled to a
response from their school under Title IX, and those failed by their schools
can seek recourse from the federal government.
Many Republicans say Congress never intended such protections under Title IX. A
federal judge previously blocked Biden administration guidance to the same
effect after 20 Republican-led states challenged the policy.
Rep. Virginia Foxx, a Republican from North Carolina and chair of the House
Education and the Workforce Committee, said the new regulation threatens
decades of advancement for women and girls.
"This final rule dumps kerosene on the already raging fire that is Democrats'
contemptuous culture war that aims to radically redefine sex and gender," Foxx
said in a statement.
In the last few years, many Republican-controlled states have adopted laws
restricting the rights of transgender children, including banning
gender-affirming medical care for minors. And at least 11 states restrict which
bathrooms and locker rooms transgender students can use, banning them from
using facilities that align with their gender identity.
But the rule makes clear that treating transgender students differently from
their classmates is discrimination, putting the state bathroom restrictions in
jeopardy, said Francicso M. Negron Jr., an attorney who specializes in
education law. It means that schools following state laws could run afoul of
Title IX.
Negron said the rule does not appear to conflict with requirements in at least
eight states that schools tell parents if their children are transgender.
Nothing in the rule, he said, "prevents a recipient from disclosing information
about a minor child to their parent who has the legal right to receive
disclosures on behalf of their child."
The revision was proposed nearly two years ago but has been slowed by a comment
period that drew 240,000 responses, a record for the Education Department.
Many of the changes are meant to ensure that schools and colleges respond to
complaints of sexual misconduct. In general, the rules widen the type of
misconduct that institutions are required to address, and it grants more
protections to students who bring accusations.
Chief among the changes is a wider definition of sexual harassment. Schools now
must address any unwelcome sex-based conduct that is so "severe or pervasive"
that it limits a student's equal access to an education.
Under the DeVos rules, conduct had to be "severe, pervasive and objectively
offensive," a higher bar that pushed some types of misconduct outside the
purview of Title IX.
Colleges will no longer be required to hold live hearings to allow students to
cross-examine one another through representatives --- a signature provision
from the DeVos rules.
Live hearings are allowed under the Biden rules, but they're optional and carry
new limits. Students must be able to participate from hearings remotely, for
example, and schools must bar questions that are "unclear or harassing."
As an alternative to live hearings, college officials can interview students
separately, allowing each student to suggest questions and get a recording of
the responses.
Those hearings were a major point of contention with victims' advocates, who
said it forced sexual assault survivors to face their attackers and discouraged
people from reporting assaults. Supporters said it gave accused students a fair
process to question their accusers, arguing that universities had become too
quick to rule against accused students.
Victims' advocates applauded the changes and urged colleges to implement them
quickly.
"After years of pressure from students and survivors of sexual violence, the
Biden Administration's Title IX update will make schools safer and more
accessible for young people, many of whom experienced irreparable harm while
they fought for protection and support," said Emma Grasso Levine, a senior
manager at the group Know Your IX.
Despite the focus on safeguards for victims, the new rules preserve certain
protections for accused students.
All students must have equal access to present evidence and witnesses under the
new policy, and all students must have equal access to evidence. All students
will be allowed to bring an advisor to campus hearings, and colleges must have
an appeals process.
In general, accused students won't be able to be disciplined until after
they're found responsible for misconduct, although the regulation allows for
"emergency" removals if it's deemed a matter of campus safety.
The latest overhaul continues a back-and-forth political battle as presidential
administrations repeatedly rewrite the rules around campus sexual misconduct.
DeVos criticized the new rule, writing on social media site X that it amounts
to " an assault on women and girls." She said the new procedures for handling
sexual assault accusations mark a return to "days where sexual misconduct was
sent to campus kangaroo courts, not resolved in a way that actually sought
justice," she wrote.
The DeVos rules were themselves an overhaul of an Obama-era policy that was
intended to force colleges to take accusations of campus sexual assault more
seriously. Now, after years of nearly constant changes, some colleges have been
pushing for a political middle ground to end the whiplash. -__
Associated Press writers Geoff Mulvihill, Annie Ma and Moriah Balingit
contributed to this report.
___
The Associated Press' education coverage receives financial support from
multiple private foundations. AP is solely responsible for all content. Find
AP's standards for working with philanthropies, a list of supporters and funded
coverage areas at AP.org.
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