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New Biden rules will prevent discrimination against transgender students

Written by Javed Iqbal

WASHINGTON – The Biden administration on Thursday proposed new rules governing how schools should respond to gender discrimination, rolling back much of a Trump administration policy that narrowed the scope of on-campus sexual assault investigations and cemented transgender students’ rights in law.

The proposal will revise expansive rules completed under former Education Minister Betsy DeVos, which for the first time codified how universities, colleges and K-12 schools are investigating sexual assault and harassment on campus. It would also expand the list of who is protected under Section IX, the federal law signed 50 years ago Thursday that prevents gender-based discrimination in education programs or activities that receive federal funding.

“It is the responsibility of the Ministry of Education to ensure that all our students can learn, grow and thrive in school, no matter where they live, who they are, who they love or how they identify themselves,” Education Minister Miguel A. Cardona told reporters d . Thursday morning.

The proposal will certainly clash with conservative state and federal lawmakers and draw legal action from conservative groups that had already begun to curb department position, issued last year, that transgender students were protected under Section IX. This Communication was based on a 2020 Supreme Court ruling that found that the protection in the Civil Rights Act against discrimination in the workplace extended to homosexuals and transgender people.

Civil liberties groups also anticipate legal challenges regarding freedom of expression and justice trials if the department drops certain provisions of the Trump administration’s rule that reflected legal precedents established by the Supreme Court and lower courts.

The department said it would issue a separate regulation on how Section IX applies to athletics, including what criteria schools can use “to determine students’ eligibility to participate in a particular male or female athletics team.”

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 certain legal obligations, and required schools to hold court-like trials called “live hearings” that enabled cross-examination of the parties involved. These rules did not define “gender-based harassment” per se, and the administration had taken the view that Title IX did not extend the protection to those who are discriminated against on the grounds of gender identity.

A fact sheet circulated by the Biden administration said the new rules sought to “restore vital protection for students in our country’s schools, which were eroded by controversial rules implemented under the previous administration.” It also said the Trump rules “weakened the protection of survivors of sexual assault and diminished the promise of an education free of discrimination.”

It suggested rules will undergo a longer public comment period before they are finalized and enter into force.

Sir. Biden, who helped draft controversial Obama-era guidance on how schools should investigate sexual assault and harassment, which Ms. DeVos later scrapped, was among the loudest critics of the DeVos rules. As a candidate, he promised to put a “quick end” to them if elected.

The newly proposed rules were informed by a wide range of stakeholder input over a year and a half, officials said, including a nationwide virtual public consultation. They largely return to the approach of the Obama era; Mr. The Obama administration never drafted formal rules on the issue, but issued guidance documents in 2011 and 2014 that sought to capture the entire universe of allegations of sexual harassment and remedies, and the Department’s Enforcement Committee.

Critics of the Obama-era guidance, including university leaders, have said schools felt pressured to take sides with the prosecution without extending sufficient rights to the accused. Since then, dozens of students have done so won lawsuits against their colleges for violating their right to a fair trial.

The rules, proposed Thursday, were widely seen as a victory for critics of the Trump-era rules, especially by proponents of sexual assault survivors who had attacked the Trump rules as too stringent and potentially traumatic or obstructive for the victims.

Emma Grasso Levine, leader of Know Your IX, a youth-led victims’ rights group, said in a statement that the organization continues to see survivors “experience punishment, retaliation and being pushed out of school because of anti-survivor 2020 rules.”

“It cannot be overstated how much student survivors need these Section IX rule changes to ensure fair grievance processes and guarantee that survivors’ education is not further interrupted by the effects of sexual violence,” she said.

The proposal expands the definition of what constitutes sexual harassment and the types of episodes that schools are required to address and investigate – to include, for example, incidents that took place off-campus or abroad, as well as incidents that creates a “hostile environment.” The new rules would also roll out the most controversial of Ms. DeVos’ rules back and make direct hearings and cross-examinations optional instead of required.

The proposal retains aspects of Ms. DeVos’s rules – which drew more than 120,000 public comments and failed legal challenges – which emphasize the presumption of innocence, fair and objective investigations, and the fair rights of defendants and prosecutors.

Still, the proposal has “flaws that put it on a collision course with the courts,” said Joe Cohn, the legislative and political director of the Foundation for Individual Rights and Expression, a non-partisan civil liberties.

Mr. Cohn said the administration’s setback in direct hearings and cross-hearings, as well as its departure from the Supreme Court’s definition of sexual harassment used by Ms DeVos, ignores freedom of speech and fair trial, which have already found such measures essential to Title IX proceedings. The rule also reinstates a “single investigator” model that the courts have found problematic, he said, with one person acting as judge and jury.

“This rule seems like that case law does not exist,” Mr. Cohn. “They have to make significant revisions if they want the regulation to survive.”

The proposal divided, predictably, congressional lawmakers along party-political lines. Senator Richard M. Burr, a Republican from North Carolina and a senior member of the Senate Education Committee, said the proposed change made it clear that “the administration puts accusations of guilt over fair consideration of the evidence.”

Senator Patty Murray, a Democrat from Washington and chair of the Senate Education Committee, called the proposal “a world of change from the backward DeVos rule that made it easier for schools to sweep harassment and assault under the rug, and harder for survivors to get ahead. , seek justice and feel safe on campus. “

The Biden proposal to define gender-based discrimination and harassment to include “stereotypes, gender characteristics, pregnancy or related conditions, sexual orientation and gender identity,” is likely to be the major lightning rod.

On Thursday, 17 state attorneys, led by Austin Knudsen of Montana and Todd Rokita of Indiana, sent a letter to Mr Cardona promises to combat “proposed changes to Title IX with all available tools in our arsenal,”

Such protections would make schools more accountable to transgender students and resolve ongoing debates about their right to use bathrooms marked for the gender they identify with; dress as they prefer; be referred to by their preferred pronouns; and be protected from gender-based bullying.

They would also help blunt the growing efforts to “erase the existence” of LGBTQ youth taking place across the country, said Jennifer Pizer, acting chief legal officer of Lambda Legal, one of the country’s oldest civil rights organizations representing LGBTQ. community.

“It’s an immense step forward,” she said, adding that “clear, powerful statements of support with concrete steps required by the federal government could not be more timely.”

The rules come as a debate about the participation of transgender students on sports teams that shake state houses and school boards across the country. In recent years, Republican-dominated legislatures in at least 18 states have introduced restrictions on transgender people’s participation in public school sports, and at least a dozen States have enacted laws with some restrictions. June 19, FINA, the world governing body of swimming, essentially banning transgender women from competing at the highest levels of women’s international competition.

And conservative groups have condemned the Biden administration’s efforts to include gender identity protection in laws across multiple agencies, as the government’s transgression undermines the rights section IX sought to promote.

“Fifty years of protection for women and girls in school activities is being wiped out because the Biden administration is embracing awakened gender ideology over basic human biology,” Kevin Roberts, president of the Heritage Foundation, a conservative think tank, said in a statement Thursday.

The proposed rules dictate that “preventing anyone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Section IX”, but does not directly address the issue of denying transgender students the opportunity to play on sports teams corresponding to their gender identity.

“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” said Mr. 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.”

The rules also come after a handful of incidents reported in recent weeks that signaled hostility towards schools that have tried to uphold the rights of transgender students.

Last month, a Wisconsin school district close their schools down – several other buildings in the city had to evacuate – after receiving several bomb threats in response to its investigation into a title IX complaint made by a transgender student. Last week, a father was arrested and charged with making threats to a school district in Vermont after he said he would “show up and kill someone” if his child was approached by a transgender person at school, according to VTDigger, an online news outlet.

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Javed Iqbal

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