EDUCATION
DeVos Guts Title IX Shield, Angering Trans Advocates
Department of Education continues chipping away at safety measures for students
BY MATT TRACY
In a move that will impact
academic institutions ranging
from K-12 to colleges
and universities, the Trump
administration’s Department of
Education fi nalized forthcoming
regulations gutting Title IX protections
for student victims of sexual
assault, loosening requirements
to investigate such cases, and extending
special privileges to those
seeking religious exemptions.
The fi nal rule, proposed in November
of 2018 and slated to go
into effect this coming August,
was blasted by advocates who
warned that the change will be
detrimental to queer students and
further contribute to President
Donald Trump’s ongoing campaign
to satisfy the religious right
while eradicating gains made during
the Obama administration to
strengthen sexual assault measures
in education.
The administration hailed the
regulations as a way to “restore due
process,” and offi cials produced an
accompanying fact sheet arguing
that “bureaucracy created in our
nation’s institutions of higher education
have often stacked the deck
against the accused.”
But the regulations could disproportionately
impact vulnerable
LGBTQ students, especially transgender
students who face greater
rates of sexual harassment and
assault. The rule follows a pattern
dating back to the early days of the
administration in 2017 when Education
Secretary Betsy DeVos rolled
back the Offi ce for Civil Rights’
investigations of discrimination
cases targeting LGBTQ students.
The following year, the department
stopped probing complaints lodged
by trans students unable to use
the bathroom corresponding with
their gender identity.
Now DeVos is back, armed with
her chisel, carving away at crucial
protections in the landmark Title
IX law that bans sex discrimination
in federally-funded academic
and athletic programs.
The latest rules shrink the
Education Secretary Betsy DeVos, left, is implementing changes to Title IX that advocates say will be
harmful to queer students.
scope of the defi nition of sexual
assault and stipulates that such
complaints are only required to be
considered if they are reported to a
limited range of school offi cials.
Furthermore, a school will only
be considered to be in violation of
Title IX if it is found to have been
“deliberately indifferent” to allegations
of sexual assault. Accusers
are also now required to convey
their allegations in live hearings.
“This new regulation requires
schools to act in meaningful ways
to support survivors of sexual misconduct,
without sacrifi cing important
safeguards to ensure a fair
and transparent process,” DeVos
said in a written statement that obscured
the reality of the changes.
The 2,033-page document goes
to great lengths to downplay comments
issued by individuals worried
that changes would hurt LGBTQ
students.
“The Department disagrees that
changing the status quo approach
to Title IX will negatively impact
women, children, students of color,
or LGBTQ individuals, because the
fi nal regulations defi ne the scope of
Title IX and recipients’ legal obligations
under Title IX without regard
to the race, ethnicity, sexual orientation,
age, or other characteristic
of a person,” it stated.
But the administration, as it has
tended to do in proposed regulations
REUTERS/ JONATHAN ERNST
across other federal agencies,
claimed that “the department does
not defi ne ‘sex’ in these fi nal regulations”
but prefaced that by defending
conservative beliefs about
the defi nition of sex.
Regarding a commenter’s assertion
that Title IX “prohibits
sex stereotyping that underlies
discrimination against LGBTQ
individuals,” the administration
noted “that some of the cases the
commenter cited are cases under
Title VII and are on appeal before
the Supreme Court of the United
States,” referring to the imminent
decisions on whether sexual orientation
and gender identity are
protected classes under the 1964
Civil Rights Act’s employment nondiscrimination
protections.
The document continued, “The
most recent position of the United
States in these cases is that the
ordinary public meaning of ‘sex’
at the time of Title VII’s passage
was biological sex and thus the appropriate
construction of the word
‘sex’ does not extend to a person’s
sexual orientation or transgender
status, and that discrimination
based on transgender status does
not constitute sex stereotyping but
a transgender plaintiff may use
sex stereotyping as evidence to
prove a sex discrimination claim
if members of one sex (e.g., males)
are treated less favorably than
members of the other sex (e.g., females).”
And while the administration’s
regulations force transparency
on accusers in live hearings, that
transparency is not expected when
it comes to religion. The administration
is giving religious groups
leeway to claim an unexplained
exemption. The regulations “eliminate
the requirement that religious
institutions submit a written statement
to the Assistant Secretary for
Civil Rights to qualify for the Title
IX religious exemption.”
“The Department does not require
recipients to publish any exemptions
from Title IX… that may
apply to the recipient and does not
wish to single out the religious
exemption for special or different
treatment,” the document noted.
The National Center for Transgender
Equality (NCTE) predicted
troubling scenarios under which
the religious exemption’s broad
latitude could mean that “a school
could expel a student for being
outed as transgender and retroactively
assert that they are exempt
from Title IX’s requirements.”
Mara Keisling, NCTE’s executive
director, said the regulations
create new barriers between trans
survivors and a decent education.
“Transgender people understand
what it means to have our experiences
ignored and put on trial,”
Keisling stated. “These new rules
will deny transgender students fair
access to a safe educational experience
and push many away from
reporting abuse at all. The Trump
administration is turning back the
clock to a time when rape, sexual
abuse, and harassment were swept
under rug and ignored.”
NCTE’s 2015 report found that
47 percent of transgender people
experience sexual assault in their
lifetime and 77 percent of those
who were out or perceived as
transgender at some point between
kindergarten and 12th grade experienced
mistreatment such as verbal
harassment or sexual assault,
or were banned from dressing in
accordance with their gender identity.
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