Title IX rules finalized and evolving

The U.S. Department of Education finalized new Title IX rules that illustrate the ever-evolving ways our society tries to battle sex discrimination in education. It’s fair to say that we’ve made great progress in the last 52 years since Congress passed Title IX, and that these efforts remain a work in progress.

For highlights of the changes, see below. But first, a brief recap: Under former President Trump, Education Secretary Betsy DeVos changed the Title IX regulations for the first time in more than 40 years. Key changes made it harder for students to get help for sexual harassment and assault, made it easier for perpetrators of those harms to avoid responsibility, and instituted some criminal-law proceedings such as in-person cross-examination into management of complaints under this civil law. Current President Biden and his Education Secretary Miguel Cardona reversed many of Trump’s changes and clarified that Title IX protects against discrimination based on sex, sexual orientation, gender, sex stereotypes or characteristics, pregnancy, and parental, marital, or family status.

The Education Department has used vaguer wording since the 1990s to apply Title IX to discrimination based on sexual orientation; the new rules make this explicit and for the first time prohibit gender discrimination in education. The Education Department also drafted separate rules to manage transgender students’ participation in athletics but a final version of those has not yet been released. Meanwhile, all students must be allowed to use the restrooms and locker rooms matching their gender identity and receive other protections under the Title IX rules. More than a dozen Republican-dominated states have passed laws that restrict or ban transgender athletes free school competitions. Republicans are counting on this to be an election-year issue.

Neither of these processes to revise Title IX rules under Trump or Biden were easy. Changing the Title IX regulations takes years of public notice, soliciting public comment, and responding to comments before releasing “final” regulations. The current version received 240,000 comments that had to be considered before finalizing Title IX rules in order for the new rules to hold up in court when they inevitably get challenged in lawsuits.

Among the most important changes to be celebrated is a revision in the definition used for sexual harassment, the Associated Press noted. Previously, conduct had to be “severe, pervasive and objectively offensive,” a much higher bar to meet than the definition used for sexual harassment in workplaces under Title VII of the Civil Rights Act of 1964. Now both laws define sexual harassment similarly as conduct that is “severe or pervasive” enough to interfere with equal access to education or work.

The new rules reverse Trump’s wording that a student-on-student sexual assault or harassment must take place on campus for Title IX to apply, Title IX Insights noted. And athletes accused of sexual misconduct can continue to play while their case is investigated, ESPN reported.

Some advocates for survivors of sexual harassment and assault say the Title IX regulations need to keep evolving, in particular to provide protection from the growing problem of lawsuits against survivors by the accused. Lawyer and Title IX expert Laura Dunn particularly is disappointed that the new rules don’t re-clarify what a “prompt” investigation of complaints entails. Since the 1970s, according to my research, that was understood to mean resolving a complaint within 60 days, a guidepost reinforced explicitly during the Obama Administration. Trump and DeVos rescinded that guidance. No some schools take a semester, a year, or even two years to resolve complaints, Dunn said in an email.

The ACLU opposes several provisions in the new regulations: Allowing universities to use a single investigator for Title IX complaints; allowing civil Title IX proceedings at the same time that police and prosecutors may be pursuing a criminal investigation, and (perhaps not surprising for a group of lawyers) allowing alternatives to in-person cross-examinations because these have been shown to be unreliable and potentially harmful in cases of sexual assault and harassment.

Educational institutions are expected to conform to the new Title IX regulations by August 1. School superintendents in at least four states urged their schools not to apply the new rules. Attorneys general for 18 states that had sued to block the Trump regulations moved to drop their lawsuit since the new rules are finalized.

The nonprofit groups End Rape on Campus, the Clery Center, and It’s on Us will host a virtual town hall about the new Title IX Regulations on Thursday, May 2 at 4 p.m. Eastern. Register at the link.

Elsewhere

Louisiana State University agreed to pay $1.9 million to 10 students who said administrators failed to properly investigate reports of rape and sexual harassment, including two alleged rapes by a star football player. The Redlands School District promised do better after the Office for Civil Rights found that the district failed to help students sufficiently in 74% of complaints about sexual harassment over a three-year period.

The federal Office for Civil Rights found that Hinds Community College in Mississippi discriminated against a pregnant student; the college agreed to take multiple steps to make sure it doesn’t happen again.

A federal appeals court struck down a West Virginia rule that attempted to ban transgender students from sports, saying it violates a student’s rights under Title IX. The National Association of Intercollegiate Athletics (NAIA), a bonsai version of the NCAA that manages athletics competitions for 241 mostly small colleges, announced a new policy that essentially bans nonbinary, intersex, and transgender athletes from participating in women’s sports. Lawsuits are likely.

In my home state of New Hampshire, MAGA Republicans toed the national party line by introducing legislation aimed at excluding transgender athletes. I wrote an opinion article pointing out their hypocrisy, since they never say boo about the real problem of entrenched discrimination that shifts resources meant for women’s sports over to the boys’ and mens’ programs. The New Hampshire Bulletin published it, as did the Concord Monitor, and The Good Men Project picked it up. (And for writers interested in the benefits of revisions, take a look at how I tweaked my Concord Monitor piece to become the improved New Hampshire Bulletin version.)

Book news

So much of researching, writing, and promoting a book is an isolated experience. Authors must trust their inner selves to believe that what they’re doing is worthwhile. Occasionally we get feedback that makes our day. Month. Year. Recently I received such a message from reader Alyssa Martin through my website/blog:

“I work in the Title IX office at the University of Connecticut and will begin the five-year process of earning my PhD in History at SUNY Buffalo this fall.

“I wanted to write to you because I just finished 37 Words. I didn’t realize how little I knew, even as someone who has ten year’s experience working in victim advocacy and anti-sexual violence education. The stories of the many people involved in making this legislation possible moved me to tears. Your work has influenced me to rediscover my voice and passion as an advocate and educator.

“Thank you, thank you for such an incredible, moving account of this critical legislation’s history.”

If you’re ever wondering whether to reach out to tell an author that you loved their book, here’s my advice: Just do it. Your words keep us going.