Schools are supposed to start implementing new federal rules on sex and gender discrimination, starting on Aug. 1, but red-state lawsuits have blocked the new rule in 21 states, reports Linda Jacobson on The 74.
The new rule states that Title IX's ban on sex discrimination includes gender identity. However, it does not mention transgender athletes, notes AP's Collin Binkley. "The administration originally planned to include a new policy forbidding schools from enacting outright bans on transgender athletes," but that was put on hold. "Republicans have rallied around bans on transgender athletes in girls’ sports."
Nobody's quite sure what districts in states covered by injunctions should do about the new regulations, writes Jacobson. “It’s a race to the Supreme Court right now," said W. Scott Lewis, a Title IX consultant who works with school districts.
In addition to expanding protections to LGBTQ students, the new rule largely replaced one issued under former Education Secretary Betsy DeVos. That regulation narrowed the definition of sexual misconduct and required live hearings so male students could face their accusers.
The new Title IX also would weaken due-process protections for male students accused of sexual misconduct, write Zach Montague and Erica L. Green in the New York Times. It widens the definition of sexual harassment -- repeatedly using the wrong pronouns could qualify -- sets a lower standard of proof and ends the Trump-era requirement for hearings in which accused students or their lawyers could question accusers. A single administrator could be both investigator and decision maker.
During the Obama administration, "scores of students who had been accused of sexual assault went on to win court cases against their colleges for violating their due process rights," they write. Trump's Education secretary, Betsy DeVos, "laid out rules for conducting impartial investigations."
The Biden administration “seeks to U-turn to the bad old days where sexual misconduct was sent to campus kangaroo courts, not resolved in a way that actually sought justice," DeVos told the Times.
I suspect many college administrators will be wary of going back to the old days of losing lawsuits.
One needs to remember the logic of the Obama Administration rules on Title IX. If the punish for sexual harassment is the same as the punishment for academic dishonesty, then the same procedures should apply. The claim about hearings and lawyers does not apply to just he said, she said disputes but to probably all student discipline activities.