President Joe Biden’s Department of Education is expected to finalize changes to Title IX rules in the coming weeks to expand the definition of discrimination beyond sex to also include sexual orientation and gender identity.
The rule changes will have seismic implications, setting off not just state versus federal showdowns over state laws barring biological males from competing in women’s sports, but also how college campuses handle sexual harassment charges and due process.
While these changes have been anticipated since Biden took office, last week the Washington Post reported the first look at a draft copy of the proposed language, which includes this key sentence:
Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.
The Post also reported that Biden’s DOE plans to rewrite rules established by President Donald Trump’s DOE, under former Education Secretary Betsy DeVos, that required schools to recognize the presumption of innocence for those accused of sexual harassment or assault.
Some of the DeVos era due process protections that may be targeted or revoked entirely include the right to cross-examination for both the accuser and the accused, as well as the right to full access to all evidence collected by schools in sexual harassment investigations and the opportunity to respond to that evidence.
Candice Jackson, who was Department of Education deputy general counsel during the Trump administration, told The Federalist that these two major changes, to both the definition of discrimination and the definition of what constitutes sexual harassment, will overlap in severely detrimental ways.
“It’s going to affect people’s ability on campus to talk about or debate about single-sex spaces on campus like women’s sports,” Jackson said. “All of a sudden, you’re in a position where even having a discussion or even trying to advocate for keeping women’s sports single-sex could get you called a harasser.”
Jackson said loosening the definition of sexual harassment moves beyond handling alleged rapes and into the realm of academic freedom.
“You’re now talking about the ability on campus to have important discussions on what gender identity discrimination means,” she said.
But as the rules are finalized, the return of campus kangaroo courts is likely to be overshadowed by the current culture war spotlight on women’s sports. With biological males winning national women’s titles, states that have recently passed laws protecting women from unfair male competition are likely to face the pressure of losing their Title IX funding.
Jackson said she thinks this time will be different. She expects states to refuse to back down, as they have on other issues where the federal government wields its funding hammer.
“There is enough disagreement at a fundamental level about whether or not it is now ever OK to provide separate comparable services and activities for boys and girls and men and women that this is this is going to be a bit of a showdown, probably needing to be revisited by the Supreme Court,” she said.