My Turn: Presidents matter — Title IX, sex-based violence and LGBTQ discrimination

Carrie N. Baker

Carrie N. Baker

By CARRIE N. BAKER

Published: 05-28-2024 7:14 AM

U.S. presidents have a tremendous influence on our rights. As head of the executive branch, presidents are responsible for enforcing civil rights laws. Democratic presidents reliably strengthen reproductive rights, enhance protections against sexual violence and eliminate discrimination against women and LGBTQ people. Republican presidents erode these rights.

One recent example is the enforcement of Title IX, a law that prohibits schools receiving federal funds from discriminating against students based on sex.

Passed by Congress in 1972, the law has been used to advance equality for women in education. In the 1980s, women’s rights advocates convinced federal courts to interpret Title IX to prohibit sexual harassment because it was a barrier to equal education for women. In the mid-2010s, in response to the demands of student advocates, President Barack Obama’s Department of Education expanded Title IX to require schools to address sexual violence as well.

Shortly after Donald Trump took office in 2017, his Department of Education undersecretary Betsy Devos rolled back Obama’s protections against sexual violence. In August 2020, Trump issued new regulations that made it much harder for survivors to make complaints about sexual harassment and assault.

Trump’s regulations only covered sexual harassment that was “severe, pervasive, and objectively offensive,” required a live hearing, forced survivors to be subject to cross-examination by representatives of the accused, and allowed the exclusion of survivors’ testimony if they refused to be cross-examined.

During his presidential campaign, Joe Biden promised to reverse the Trump regulations. On April 19, the Biden administration finally released new federal regulations strengthening protections for student survivors of sex-based violence. The Biden regulations expand the definition of sex-based harassment, remove the requirement of live hearings with cross examination of survivors, and require prompt resolution of complaints.

They also reversed a Trump policy allowing schools to resolve cases involving students through mediation rather than investigation — a practice previously prohibited by Obama. Mediation assumes a level playing field which does not exist between a survivor and an alleged perpetrator.

On the burden of proof, Biden reversed a Trump rule allowing schools to require survivors to prove their allegations by “clear and convincing evidence” even when they allowed a lower “preponderance of the evidence” standard in other disciplinary matters on campuses.

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Finally, unlike under Trump, the Biden regulations apply to online sexual harassment as well as sexual misconduct that takes place in study abroad programs and off-campus housing, as long as the misconduct impacts the survivor’s education.

In addition to addressing sexual violence, the new Biden regulations clarify that Title IX protects students from discrimination based on “pregnancy or related conditions,” including termination of pregnancy, and discrimination based on “sex characteristics … sexual orientation, and gender identity.” The latter part of this policy is based on the June 2020 Supreme Court decision in Bostock v. Clayton County that the federal law prohibiting sex discrimination in employment covers sexual orientation and gender identity discrimination. The Biden regulations apply this principle to Title IX.

The new regulations, which go into effect on Aug. 1, do not apply to sports, which will be addressed in a different set of guidelines due out by the end of the year.

“By rescinding the Trump administration’s harmful and restrictive sex harassment rule, and making protections clearer for survivors, pregnant and parenting students, and LGBTQIA+ students, this rule will ensure every student has the freedom to learn and to be themselves,” stated a press release issued by Equal Rights Advocates on behalf of a coalition of over 20 organizations supporting the new regulations. Advocates hope to use the regulations to challenge state laws that discriminate against transgender students.

The right-wing backlash to these new regulations has been rapid and fierce. Republican attorneys general from at least 15 conservative states have already filed four lawsuits challenging the new protections for LGBTQ students. Meanwhile, The Heritage Foundation, a wealthy right-wing think tank, has published a detailed 887-page policy agenda for the next Republican president that includes rolling back these new Title IX regulations, as well as LGBTQ rights.

There’s so much at stake in the 2024 presidential elections, including the rights of women and LGBTQ people. President Biden has been a longstanding advocate for women’s right to be free from violence. He was a leader in passing the Violence Against Women Act in 1994, an architect of the Obama-era Title IX regulations to protect students from sexual violence, and has now fulfilled his pledge to restore these Title IX protections.

On the other hand, Republicans are pledging to eliminate Title IX protections against sex-based discrimination and sexual violence. The difference is clear.

Please call your members of Congress to ask for increased funding for the Department of Education for Title IX enforcement to ensure that every young person has access to an education free from sex discrimination, harassment and sexual assault. And be sure to vote in the November election. Our rights depend on it.

Carrie N. Baker is a professor in the Program for the Study of Women and Gender at Smith College and a regular contributor to Ms. Magazine.