Biden reinforces protection against sexual abuse in universities and against discrimination of LGTBQ students

By Tyler Kingkade —

The Joe Biden administration on Thursday proposed major changes to federal rules on sexual assault on college campuses, strengthening protections for LGBTQ students and victims' rights, and expanding the responsibilities of schools to address sexual misconduct.

The proposal, announced on the 50th anniversary of the Title IX women's rights law, seeks to replace the controversial regulations issued during the Donald Trump Administration by Education Secretary Betsy DeVos.

The current Title IX regulations do not address the rights of transgender students.

The proposed rules are likely to spark a heated battle over the obligations of schools to deal with sexual misconduct, the balance between the rights of victims and accused students, and the rights of transgender students. 

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“Our proposed changes would fully protect students from all forms of sex discrimination, rather than limit some protections to just sexual harassment, and make it clear that those protections include discrimination based on sexual orientation and gender identity,” he said. this Thursday to the journalists the Secretary of Education, Miguel Cardona.

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The proposed rules would retain some Trump mandates, such as requiring schools to consider a student innocent until the conclusion of the complaint procedure and continuing to allow informal resolutions of sexual misconduct complaints if both the accuser and the accused agree.

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They would also allow schools to use a clear and convincing standard of proof — which generally means about 75% certainty — to determine whether an accused student has violated sexual misconduct rules, but only if it is also used by the school in other ways. cases of discrimination, such as those related to racial harassment.

Otherwise, schools must use the preponderance of the evidence standard, or 51% certainty, the same threshold used in most civil lawsuits.

However, the proposal departs from current regulations in a number of ways, including that live hearings will no longer be required in college sexual misconduct cases, cross-examination will no longer be required at hearings, and schools will be allowed to investigate and punish assaults that take place off campus.

The proposed rules would also allow the investigator to decide the outcome of the case, but would require that all Title IX coordinators, investigators, and officers have no conflict of interest or bias for or against the complainants or defendants.

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The Biden administration's proposal would also allow schools to investigate and punish sexual misconduct without the need for a formal complaint.

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For 60 days, the public will be able to submit comments on the proposed Title IX regulation.

The department will then have to address each item in writing before the regulation can be finalized.

The process is likely to take several months, if not longer, to complete.

But if Republicans regain a majority in the House and Senate, lawmakers could use the Congressional Review Act to vote within 60 days to overturn major regulations issued by federal agencies.

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Title IX, an element of the Education Amendments of 1972, prohibits discrimination on the basis of sex in any school that receives federal funding—which is almost all—and federal courts have held that the law requires schools to address allegations of sexual misconduct.

The administration of Democrat Barack Obama stepped up enforcement of Title IX in response to a surge in activism by sexual assault survivors on campus, who said schools were punishing offenders with a slap and not supporting victims.

However, conservative organizations, civil liberties groups and some law professors opposed the policies prescribed by the Obama Administration, complaining that they did not safeguard due process in campus investigations. 

The Trump Administration subsequently spent much of its tenure building a Title IX regulation, implemented in 2020, that prescribed steps schools must take to respond to allegations of sexual assault and toughened the definition of sexual harassment. 

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The regulation said schools were not allowed to open a Title IX case if an alleged assault occurred off campus, required colleges to hold hearings to determine the guilt of an accused student, and limited what could be considered in court, among many other provisions.

The rules were overwhelmingly opposed by advocacy groups for sexual assault survivors, civil rights organizations, and K-12 school and college business groups.

During the 2020 presidential campaign, Biden promised to overturn the regulation.

His government has said it is using the 2020 Supreme Court decision in

, which held that employees cannot be discriminated against in a workplace because they are gay or transgender, to guide its approach to LGBTQ rights in educational settings. 

The entrenchment of discrimination against transgender students as a violation of Title IX has attracted a host of new activist groups, many of which emerged in the past two years amid a wave of intra-school battles over race. and gender.

In April, 27 conservative activist groups sent a letter to Cardona expressing concern that the department's plans for the new Title IX rule would erode due process protections for accused students and that expanding protections for gender identity “would rob girls and women of equal opportunities in sport”.

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The proposed rule would not address who can be on men's or women's sports teams.

A senior department official said he hopes to propose separate rules regarding athletics, but he couldn't say when that will happen.

“The department recognizes that the standards for students participating in men's and women's sports teams are evolving in real time,” Cardona said.

More than 200 civil rights groups sent their own letter to the department earlier this month urging it to honor the Administration's promise to issue new Title IX rules, arguing that sexual assault survivors, LGBTQ students and pregnant women urgently need protection and that current regulations have discouraged students from reporting abuse.

"There are students who don't want to go through the process, who are too afraid to go through the process, who don't trust the process," said Adele Kimmel, a victims' rights attorney with the nonprofit Public Justice. one of the groups that signed the letter.

Existing regulation imposed by the Trump administration has been a “nightmare” for schools to adhere to as well, said Jackie Wernz, an Illinois-based attorney who advises schools on civil rights laws and federal mandates.

The requirements for misconduct investigations are too prescriptive, she said, and often conflict with state laws and union agreements.

The Trump Administration also scrapped a requirement that Title IX cases be resolved within 60 days, ordering instead that they be completed in a reasonable time.

The new proposal would maintain the same language.

Elizabeth Abinour, a Michigan-based attorney who represents students in Title IX cases, said she has had many cases where schools took more than a year to resolve an investigation.

"There's no way to challenge that when the rule just says the timeframe has to be reasonable," Abinour said.