Title IX to be changed under Biden, and not necessarily for the better

June 3, 2022 • 11:15 am

I’ve written before that one of the few good things that the Trump administration did (probably actually the doing of Betsy DeVos, the Secretary of Education, was to change the Title IX standards to create a fairer process when colleges adjudicate sexual harassment cases. (You can read my posts on that hereherehere, and here.) Title IX, you may recall, is a federal law that prohibits educational institutions partly funded by the government from discriminating on the basis of sex. It’s been used as the basis of sexual harassment cases, and has also gone a long way towards supporting women’s sports.

Here’s the original wording signed into law by Nixon:

“No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Some of DeVos’s salubrious changes were the elevation of the “preponderance of evidence” standard in sexual assault and harassment standards (more than a 50% probability it happened) to a “clear and convincing evidence” standard. The courts, of course, use a “beyond a reasonable doubt” standard, which is even higher, but at least the DeVos alteration raised the bar for finding a student guilty—which, after all, could result in students being thrown out of college and marring the rest of their lives.  I don’t think “it’s more likely that the accusation is correct than it’s not” is a high enough bar for something so serious.

Here are the various degrees of certainty (civil suits in court require “clear and convincing evidence”).

  • Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
  • Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
  • Conviction requires a “preponderance of the evidence” for assault or hasassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.

In fact, a huge majority of readers, when polled, favored adjudication of the claims by the courts, and only if an accused was convicted would a college adjudicate the case:

Well, that’s not a scientific poll, but so be it. Other changes were mandated by DeVos as well, like who the investigating agent would be (previously it was often the same person who rendered judgement in a college!), whether an accused student could have a lawyer or advisor present (previously no), and whether the accuser would be required to face the accused and answer questions (previously no, but yes under DeVos).

I’m not the only one who favored the changes: many liberals and feminists did, as well as liberal professors (the ACLU waffled). In my view, the changes made the process fairer in cases that had very serious implications.

Now, however, according to an op-ed in the Wall Street Journal and an article from April 28’s Inside Higher Ed, the Biden Administration is preparing to roll back the DeVos changes, and also to alter Title IX in other ways, giving gender identity the same protection that sex had.

Here’s what the WSJ says will probably change (no firm regulation has yet been floated):

a.) The standards for guilty may revert back to “preponderance of evidence’

b.) “Sex” in the Title IX regulations will now be construed as “gender” and “gender identity”.  Since the Biden administration so far construes “gender identity” as having nothing to do with surgery or medical treatment, “gender identity” may well be “whatever you claim to be.” As the WSJ says, in its usual Chicken Little scenario:

This would require every educational institution that receives federal money to allow biological men into women’s locker rooms, sororities and other previously female-only spaces. Any school that attempts to prevent the next Lia Thomas from competing on a women’s team will have its federal funding snapped back—under the same law that once required schools to increase athletic opportunities for women and girls.

I don’t care so much about bathrooms or locker rooms, but I do care about sports and the way sexual harassment/assault claims are judged. If “gender identity” is used the way that Biden’s administration uses it now, there will be big trouble ahead, and probably a Supreme Court case in the future.

c.) Parents won’t be able to exempt their children from learning about “choosing one’s sex”, and schools will now be empowered “to transition children without receiving parental consent or even informing parents.”  I don’t care much about the lesson plans (I don’t know what they’d involve), but I do think parents should to be informed if a minor child requests either a formal change of gender or counseling for changing gender.

Under its most lax construal, “gender” is “whatever identity you want to assume.” If that’s what Biden is going to insert into Title IX, he’s in for trouble, not only in the courts (over 200 college “preponderance of evidence”-based convictions for sexual assault have already been overturned in the courts), but also politically. Imagine what Republicans will make of this.

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Inside Higher Ed reports that Biden’s Title IX changes were to be enacted in April but were put off until at lest May.  I don’t think they’ve yet been signed into law. IHE says this about the history of the regulation:

The draft rule represents a rewrite of one proffered by former Education Secretary Betsy DeVos, which took effect in August 2020. The DeVos rule created a judiciary-like method of evaluating reports of sexual violence on college campuses, notably allowing an accused student and their accuser to cross-examine each other through an adviser of their choosing.

It also shrank the scope of cases colleges need to investigate, prompting ire from sexual assualt survivors and their advocates who thought the regulation licensed colleges to disregard these problems.

DeVos, however, in issuing the rule responded to a chorus of accusations from due process activists. They argued the Education Department for years had pressured colleges to find accused students responsible for sexual assaults, under the threat of revoking institutions’ funding for not complying with Title IX regulations. This in turn disregarded accused students’ rights, they said.

This is where DeVos was right, I think. You don’t want to convict someone without sufficient evidence (or even try them until after the local courts have found a person guilty) just to meet a quota or the demands of people on social media. More history:

The debate broke out in full after the Obama administration put new emphasis on sexual violence prevention, issuing guidance in 2011 and 2014 that directed how institutons should address these issues.

President Joe Biden is expected to take up that mantle. He was deeply involved as vice president with the former administration’s Title IX sexual misconduct response. [JAC: The one DeVos changed.]

The Education Department expects to publish its draft rule in the Federal Register next month, which at that point will start a public comment period, typically 60 days. The agency may make changes based on feedback, and a rule will then be finalized.

And a bit about the new regulations:

Reportedly, the new draft regulation will protect gay and transgender students from sex-based discrimination. That idea drew criticism from 15 Republican state attorneys general who threatened to sue the Biden administration over the forthcoming rule. The attorneys general urged the White House to halt the regulatory process for issuing a new rule.

Sexual assault survivor groups last August urged the Biden administration to expedite changes under Title IX and publish a draft rule by Oct. 1, 2021 — a call the Education Department did not heed.

This is a different take from the WSJ’s, but of course we’re going on “reported” regulations. Gay and transgender students should, of course, be protected from discrimination, but we don’t know what Biden’s new rule is going to say.

It’s unwise to kvetch too much based on rumors and unsubstantiated reports, so all I’ll say is that if Biden tries to insert “sex, gender, and gender identity” into Title IX in place of “sex”, without being more specific, he’ll be opening up a can of worms.

 

16 thoughts on “Title IX to be changed under Biden, and not necessarily for the better

  1. I suspect Title IX won’t survive the either the incoming conservative Congress this year, the incoming conservative president in a year and a half, nor a current supreme court challenge.

    1. When you say “Title IX won’t survive,” are you talking about potential as-yet unenacted Biden administration changes to Title IX, or an invalidation of Title IX itself?

      1. Definitely the changes, possibly the entire thing. This is the court that struck down part of the Voting Rights Act.

    1. One follow-up. The German Federal Constitutional Court has already recognized a third catch-all gender, ‘diverse’. It’s led to very difficult conversations, because you can no longer say that there is a ‘diverse group’, because they now use the term exclusively to refer to the third gender. I see messages with the tag (M/W/D) (male/female/diverse), and they had to develop extra grammatical inflections. Now that the door is open, I fully expect someone to introduce a fourth gender. Austria already allows for male, female, diverse, and intersex.

      This is why I don’t want any special accommodation or segregation for sex or gender.

      https://de.wikipedia.org/wiki/Divers

  2. When it comes to gender identification issues, as someone who lives in the subtropics, I wish to voice my objection to Hurricane Agatha transitioning to Tropical Storm Alex as it crossed Mexico’s Yucatán Peninsula from the Pacific to the Gulf of Mexico.

    Plus, it’s too damn early in the season for this stuff.

  3. The Equality Act defined “gender identity” as “the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” Presumably, they’d stick with a similar definition.

    This is a sloppy definition. For one thing, it seems to define “gender identity” as “gender-related identity,” which isn’t helpful, and lacks the clarity we’d expect in a legal definition.

    And then there’s the vague nod to “gender-related” appearance, mannerisms, and “other” characteristics, no examples provided. What, then? Wearing a dress? Walking with mincing steps vs a confident stride? Taking charge in a firm manner? Being kind & yielding? How are they going to separate “gender” from sex and avoid stereotypes? Is the law going to leave it up to the imagination?

    My suspicion is that all the heavy lifting for the definition is done in gender identity = gender identity. There goes Title IX.

  4. “Parents won’t be able to exempt their children from learning about “choosing one’s sex”, and schools will now be empowered “to transition children without receiving parental consent or even informing parents.”

    That is pretty much the only way they can convince kids to embrace gender confusion. The parents need to be kept from knowing anything about it until the kids are more or less committed. This is incredibly destructive. They phrase it as teaching them about it, but it is only that in the same way that attending a timeshare sales presentation is learning about real estate.
    Almost any kid can be convinced to believe they are trans, if the adult has enough access to the child, and if the people who care about the kid don’t learn about it and interfere.

    What do the kids get out of it? Almost all of them will experience depression serious enough to require medication. Over 40% will actually attempt suicide. Not just contemplate it, but attempt it. It is harder to learn how many actually end their lives, although in general, 7% of people who attempt it succeed.
    All of those numbers are widely variable, but I tried to use the most reliable numbers I can find.

    There are a lot of ways to put that into perspective, but one way is to consider that the odds of attending your kid’s funeral are about the same whether they decide they are trans or if they attended Robb Elementary in Uvalde on 5/24/22.

  5. “Sex” in the Title IX regulations will now be construed as “gender” and “gender identity”. Since the Biden administration so far construes “gender identity” as having nothing to do with surgery or medical treatment, “gender identity” may well be “whatever you claim to be.”

    Or in other words, one’s sex is totally irrelevant.

  6. In 2017, in the Atlantic, Emily Yoffe wrote a three part series on the enforcement of the Obama Administration’s guidance on adjudicating campus sexual assaults. The series was Pulitzer worthy. It detailed various cases and their outcomes on campuses and later, in the courts. Spoiler alert, the young plaintiffs convicted by colleges usually won in the courts. The colleges used star chamber procedures that gave the youngsters involved few protections and no rights. Yet the decisions ruined many young lives. Often after an alcohol fueled encounter in which both students were drunk but only the female was considered too drunk to have truly consented. A number of those accusations were made after a relationship ended and one of the participants remembered an encounter during the relationship in which she’d been too drunk to have actually consented to sexual activity. Now the Biden administration wants to add gender and transgender offenses into this mix? In the near future, these Title IX changes are unlikely to wear well in the actual courts or the court of public opinion as a whole.

  7. Oh why is Biden poking the bear, grabbing the electric 3rd rail and tugging with this one and damn it, just before the election? It is a huge sizzling feast for both the demented right and the woke crazies which will derange the already horrible political landscape.
    For the record, I think Ms. deVoss’ actions were correct even if I can’t stand the woman, her grifter MLM family or warmonger billionaire brother. They are a truly horrible family. They’re the epitome of “all the best people” from Trumpworld.

    D.A., J.D.
    NYC

    1. One of the worst things of our time is the false dichotomy between right-wingers and TRAs. What happened to the sensible, traditional progressive/liberal position?

    2. It seems like misplaced priorities to react to such things only by worrying that one’s political opponents might gain some advantage, rather than being concerned about the thing itself.

  8. Feminism, reason, fairness and evidence need not apply. Like any dogma prone ideology.

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