Re-Election Politics at Play as Biden Administration Refuses To Give a Timeline for Implementing Changes to the Way Title IX Is Enforced for Transgender Sports and Sexual Assault

When will the Biden administration release its final rule changes to Title IX regarding transgender participation in school sports and how colleges handle sexual misconduct complaints?

Chip Somodevilla/Getty Images
The education secretary, Miguel Cardona, at the White House on June 30, 2023. Chip Somodevilla/Getty Images

When Joe Biden ran for president in 2020, he promised to put a “quick end” to the Trump administration’s rules under Title IX, saying those rules gave colleges “a green light to ignore sexual violence and strip survivors of their rights.”

Yet after nearly three years in office, the administration keeps delaying — first promising to release new Title IX rules in May, then October — and now the Department of Education is refusing to give a timeline.

“We are utilizing every resource at our disposal to complete this rulemaking process as soon as is practicable,” an education department spokesman tells the Sun. “The Biden-Harris administration remains resolute in our commitment to support all students and ensure they receive quality education free from discrimination.”

Critics of the administration and of transgender participation in women’s sports say the administration’s delays are politically motivated. President Biden is running for re-election, and his proposed Title IX rule to bar blanket bans on transgender participation in sports teams that align with a person’s gender identity is widely unpopular with the American public.

Polling shows that a majority of Americans — 69 percent — think athletes should be able to compete only on “teams that match their birth gender,” according to Gallup. That percentage has grown in the last two years, as prominent transgender athletes like Lia Thomas, an NCAA swimming champion, have dominated female competitions and Republicans have seized on the issue. It is a flashpoint in the culture war.

“Everything the Biden administration does is based on what’s best for them politically,” Mississippi’s Republican governor, Tate Reeves, tells the Sun. “They’re delaying to buy themselves time to come up with new talking points that work to deceive the public. The vast majority of Americans are for protecting women and protecting fairness in women’s and girls’ sports.”

Title IX of the Education Amendments is a 1972 law that prohibits sex-based discrimination in schools that receive federal funding. The Biden administration released its proposed Title IX rule changes regarding athletics in April. Those changes received more than 150,000 public comments, to which the administration is required to respond.

The transgender sports policy has gotten pushback from both sides. In May, Mr. Reeves led a coalition of 25 Republican governors in sending a letter to Mr. Biden’s education secretary, Miguel Cardona, asking the administration to withdraw or delay implementing its transgender athletics Title IX rule, calling it “blatant overreach.” 

Since 2020, 23 states have passed laws restricting transgender sports participation to teams that align with natal sex, not gender identity, according to the Movement Advancement Project, which tracks LGBTQ legislation.

LGBTQ rights activists say the Biden rules don’t go far enough in protecting transgender athletes, since the rules would allow for individual exceptions “in some instances,” when “fairness in competition” or the risk of sports-related injury is at stake. The threat of a civil rights investigation and loss of federal funding, though, would likely prevent most schools from finding those exceptions.

“It clarifies that these blanket bans violate Title IX,” a senior attorney, Sasha Buchert, for the LGBTQ legal advocacy organization Lambda Legal, told the Sun in April. She added, “We would always love something a lot stronger.”

The Department of Education released its proposed changes to how schools handle sexual misconduct complaints — basically reversing much of the Trump administration’s changes designed to ensure due process rights to accused students and returning to regulations similar to those instituted under President Obama and the “Dear Colleague” letter — in June 2022. These proposed changes got nearly 250,000 public comments.

The Department of Education says it is “working overtime” to address and respond to “a historic number of comments.’’ It says it will release the entire package of finalized Title IX rules at the same time.

“I’m surprised they haven’t had more urgency,” a Brooklyn College history professor, KC Johnson, who studies college sexual assault cases and opposes the changes, tells the Sun. “If they release them in February, they can’t be implemented before the start of the fall 2024 semester.”

As of today, the Department of Education has not sent its Title IX rules to the Office of Management and Budget to review them before being published. The review can take up to 90 days, and colleges have asked for at least eight months to implement the changes, according to Inside Higher Ed.

The Biden administration’s proposed Title IX rules governing how colleges handle sexual misconduct allegations are also drawing heat. The current Title IX rules were instituted in 2020 under President Trump’s education secretary, Betsy DeVos.

These rules sought to correct what the administration saw as a system — instituted during the Obama administration, with Vice President Biden taking a leading role — tipped too heavily in favor of accusers, while compromising due process rights of accused students.

Critics of Mr. Trump’s changes, Mr. Biden among them, say that these rules made the process too onerous and had a “chilling effect” on victims of sexual assault and harassment that is preventing them from coming forward. The Trump regulations guarantee the right to a live hearing and cross examination in cases where a student is accused of sexual misconduct. 

Mr. Biden’s proposed Title IX rules would make those due process protections optional and at a school’s discretion. The Biden administration’s proposed changes would also lower the standard of guilt in these cases to “preponderance of the evidence” from “clear and convincing.”

“The 2020 regulations created a ton of strategic advantages for people accused of sexual assault and dating violence,” an attorney and deputy director at the Victims Rights Law Center, Amanda Walsh, who supports the changes and was the Title IX program director at Brown University, tells the Sun. “It was a very stacked process against complainants.”

Others disagree. “It’s not exactly a great thing that now it will actually be binding rules that strip due process protections out of the process, or at least give schools the green light to do so,” the legislative and policy director for the Foundation for Individual Rights and Expression, Joe Cohn, tells the Sun.

The Biden administration’s proposed rules would expand the definition of harassment to include gender identity as a protected class, while also lowering the standard of liability to “severe, pervasive and objectively offensive.” Mr. Cohn says these changes could have chilling effects on  free speech on college campuses. 

Student activist groups like Know Your IX are pressuring the Biden administration to hurry up and submit the rule changes. Ms. Walsh says she thinks the final rules will “land somewhere in the middle” between the Obama and Trump regulations.

“The fact that these aren’t out when they’re getting pressure from activist groups on both the sexual misconduct and the transgender sides is interesting, and it’s entirely possible that there’s some internal disagreement — politically and legally — within the administration about whether they can get away with going even further than they did,” Mr. Johnson says. “On this issue, Biden is the truest of true believers.”

The New York Sun

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