The Biden administration is expected to release guidance this month that would make significant changes to Title IX, the federal civil rights statute that prohibits sex-based discrimination in education. These proposed reforms include rolling back a number of due process protections the Trump administration implemented and changing the definition of “sex” to include “gender identity.”
In other words, President Joe Biden is trying to use Title IX as a tool to erase women — to force schools and universities that take federal funds to embrace the cultural radicalism of the Left, if they have not already. This poses a serious threat to the rights of students, especially female students, who will be expected to sacrifice their right to privacy and equal opportunity on the altar of gender ideology.
Under the Trump administration, then-Education Secretary Betsy DeVos made sure that Title IX’s sex-based protections were grounded in the long-standing definition of “biological sex, male or female,” which is the “only construction consistent with the ordinary public meaning of ‘sex’ at the time of Title IX’s enactment.” She noted that the very reason Title IX was passed was to protect the more vulnerable sex (women) by “authorizing or allowing sex-separate activities and intimate facilities to be provided separately on the basis of biological sex.” She also understood that introducing gender identity into the mix would undermine Title IX’s stated goal by allowing men who identify as women to violate the separate and safe spaces the statute was designed to protect.
Biden wants to undo all of this. On his first day in office, he signed an executive order declaring that “all persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” And just last month, Biden’s Justice Department announced its attention to apply this order to Title IX, which means schools will have to allow male students into women’s restrooms, locker rooms, and sports teams or face allegations of discrimination from the federal government.
One need only look at how University of Pennsylvania transgender swimmer Lia Thomas crushed the female competition at both the state and national levels to understand just how harmful this rule change would be to female athletes.
And there is no question that opening up women’s restrooms is a threat to girls’ safety. In 2018, for example, the Education Department began investigating a case in which a 5-year-old girl was allegedly attacked by a “gender-fluid” student who was using the girls’ restroom. In 2015, female students in an Illinois school reported feeling violated and uncomfortable after they were forced to undress and change alongside a male transgender student in the girls’ locker room.
Biden’s proposed changes would also eliminate several administrative due process protections that the Trump administration put in place for students accused of sexual harassment or assault — protections guaranteed by the Constitution . Under the Trump administration, the Education Department codifiedthe Supreme Court’s definition of sexual harassment as conduct “so severe, pervasive, and objectively offensive that it denies a personal equal education access.” Accusers were also required to bring “clear and convincing evidence” to support their allegations and undergo cross-examination if necessary, which is what they would have to do in any other court setting.
Biden, however, wants to toss these standards and return to the Obama-era definition of sexual harassment, which was considered any “unwelcome conduct of a sexual nature,” and required only a “preponderance of the evidence” with no guarantee of cross-examination for the defense. Undoubtedly, these rules will turn college campuses back into kangaroo courts in which (usually male) students are denied the presumption of innocence. They could prove very expensive for universities when falsely accused students sue .
If Biden cared about justice and equality, he’d leave Title IX as it is. No woman should have to feel uncomfortable or disadvantaged in a female space because she has to change next to a man. Female athletes should not be forced to compete with males in women’s sports. And no student, male or female, should be subjected to unfair standards of adjudication that our legal system would reject.
But our president has proven repeatedly that he cares more about what’s woke than what’s right — on Title IX and many other policies. Unfortunately, in this case, students will bear the costs of his failures.