The rights of LGBTQ students will be protected under federal law, and victims of sexual harassment on campus will have new protections under rules finalized Friday by the Biden administration.
The new provisions are part of a revised Title IX rule issued by the Department of Education, fulfilling a campaign promise by President Joe Biden. He promised to abolish the rules created by former Secretary of Education Betsy DeVoswhich adds new protections for students accused of sexual abuse.
However, Biden’s policy lacks any mention of transgender athletes.
The administration initially planned to introduce a new policy prohibits schools from imposing outright bans on transgender athletes, but that provision was delayed. The delay is seen as a political maneuver in an election year by Republicans gathered around bans on transgender athletes in girls’ sports.
Instead, Biden is formally repealing the sexual harassment rules put in place by his predecessor and current election year opponent, former President Donald Trump. The final policy was praised by victims’ advocates, while Republicans said it violated the rights of accused students.
The new rule “makes it clear that everyone can attend schools that are safe, welcoming and respect their rights,” said Education Secretary Miguel Cardona.
“No one should face violence or discrimination just because of who they are, who they love,” Cardona told reporters. “Unfortunately, this happens all too often.”
Biden’s regulation is intended to clarify schools’ obligations Title IX, the Women’s Rights Act of 1972 prohibits discrimination based on sex in education. This applies to colleges, elementary and secondary schools that receive federal money. The update will take effect in August.
Among the biggest changes is the new recognition of Title IX Protects LGBTQ students — A source of deep conflict with Republicans.
The 1972 law does not directly address the issue, but the new rules clarify that Title IX also prohibits discrimination based on sexual orientation or gender identity. LGBTQ students who face discrimination will have a right to a response from their school under Title IX, and those who are failed by their school can appeal to the federal government.
Many Republicans say Congress never intended such protections under Title IX. A federal judge previously ruled the Biden administration had the same effect after 20 Republican-led states. opposed the policy.
House Education and Workforce Committee Chairwoman Virginia Foxx, R-North Carolina, said the new regulation threatens decades of progress for women and girls.
“This final rule adds kerosene to the already raging fire of Democrats’ offensive culture war aimed at radically redefining gender and sex,” Foxx said in a statement.
It was a revision proposed about two years ago but slowed with the comment period garnering 240,000 responses, a record for the Department of Education.
Many of the changes are to ensure that schools and colleges respond to complaints of sexual abuse. In general, the rules expand the types of violations that institutions must address and provide more protections for students who file charges.
Chief among the changes is a broader definition of sexual harassment. Schools must now address any unwanted sex-based behavior that is “severe or widespread” and limits a student’s equal access to education.
Under the DeVos rules, the conduct had to be “serious, pervasive, and objectively offensive,” a higher bar that excludes some types of violations from Title IX’s purview.
Colleges will not be required to hold live auditions to allow students to vet each other through representatives — a signature provision of the DeVos rules.
Live auditions are allowed under Biden’s rules, but they are optional and carry new restrictions. Students should be able to participate in auditions remotely, for example, and schools should ban “obscure or stalking” questions.
As an alternative to live auditions, college officials may interview students individually, giving each student the opportunity to propose questions and receive a recording of the responses.
The hearings have been a major point of contention with victims’ advocates, who say it forces sexual assault survivors to confront their attackers and discourages people from reporting assaults. Supporters argue that universities are too quick to pass judgment on accused students, saying they give accused students a fair process to question their accusers.
Victims’ advocates welcomed the changes and urged colleges to implement them quickly.
“After years of pressure from students and survivors of sexual assault, the Biden Administration’s Title IX update will make schools safer and more accessible for young people, many of whom have been irreparably harmed while fighting for protection and support,” said Emma Grasso Levine, senior manager at IX Group You Know.
While focusing on protections for victims, the new rules preserve certain protections for accused students.
Under the new policy, all students must have equal access to present evidence and witnesses, 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.
Generally, accused students cannot be disciplined until found responsible for the violation, although the regulation allows for “emergency” expulsions if deemed a matter of campus safety.
The latest overhaul continues a back-and-forth political battle as presidential administrations repeatedly rewrite the rules on campus sexual misconduct.
The DeVos rules were an overhaul of an Obama-era policy aimed at forcing colleges to take campus sexual harassment allegations more seriously. Now, after almost continuous change, some colleges are trying to forge a political middle ground to end flogging.