Biden's New Title IX Changes: A Win For Trans People, A Loss For Women And The Falsely Accused

For all the outrage over Betsy Devos being an ill-equipped, unqualified buffoon of a Secretary of Education by her detractors, she made one of the most significant improvements to federally funded schools in recent history. Regardless of your thoughts on Trump or Devos, their changes to Title IX were a massive improvement to the Obama administration's decision to gut due process and install kangaroo courts that stacked the odds against the accused and in favor of the accusers. 

Biden’s new changes to Title IX are one of the most significant constitutional violations we have seen in recent history, with countless lawsuits being filed against colleges emerging successful in determining university negligence concerning Title IX proceedings. After finally making headway when Devos rescinded the Obama administration's "Dear Colleague" letter, we're right back where we started, only this time, it's even worse and affects not just college students but all students attending federally funded educational institutions, from K-12. These new changes will go into effect on August 1 of this year.

Disastrous Changes Have Been Made in the Handling of Sexual Assault

In 2011, under the Obama Administration, a "Dear Colleague" letter was sent to all federally funded institutions as guidance on how to proceed when a student brings forth allegations of sexual assault. Using manipulative language and paranoia surrounding "rape culture" fearmongering on college campuses, the administration successfully ushered in Orwellian measures that sounded like a fairytale for sexual assault advocates. Who doesn't want to protect victims from physical and emotional harm? The only problem was these so-called protections ushered in kangaroo courts that were stacked in favor of accusers and biased against the accused.

We witnessed firsthand the ugliness that such policies produced: Lawsuits succeeded to the tune of millions of dollars against universities for improper handling of sexual assault cases for denying students their right to due process. Huge media stories propagating lies without any fact-checking likewise resulted in huge lawsuits and the destroyed credibility of said publications. While the goal may have been born out of good intentions, we can't legislate based on intentions. We need to be just as concerned with application and outcomes.

Devos withdrew the 2011 guidance that resulted in so many innocent people, mostly men, having their educational careers and reputations ruined based on hearsay, in 2017, putting in place reasonable measures of due process to protect the accused from false accusations.

Now, just in time for the start of the new school year, Biden is bringing back a lower standard of proof for students who allege they were sexually victimized. Among the issues included was revoking the accused's right to a live hearing and cross-examination, which are now optional. As an alternative to live hearings, college officials can interview students separately, where the student can suggest questions and their responses are recorded, but the accused cannot hear or witness in real-time. Victim advocates have fought for a long time to remove these live hearings, claiming they forced survivors to face their attackers. However, this is a standard legal procedure, which is how seriously accusing someone of sexual assault and potentially ruining their life should be taken. 

New Title IX changes hold the accused accountable if the allegations are "more likely to be true than not true." 

The regulations stipulate that schools can allow a full hearing and cross-examination, but given the sociopolitical optics, especially on college campuses, institutions have no incentive to do so voluntarily. Quite the opposite; they're incentivized to hold the accused to the fullest discriminatory extent of Title IX, delivering their head on a stake to avoid losing their federal funding. While appearing on The Megyn Kelly Show, KC Johnson, author of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, explained that universities would only be compelled to provide the accused with a hearing and cross-examination if a court orders them to or if a state adopts a law that requires it. The accused also do not get to see the evidence against them. 

Even in cases where live hearings are permitted, students can now participate remotely, and schools must prohibit questions that are "unclear or harassing." Most guttingly, institutions are to return to the "preponderance of evidence" standard, which holds the accused accountable if the allegations are "more likely to be true than not true." In other words, rather than the “beyond reasonable doubt” standard in criminal cases, there only needs to be a 51% likelihood of the accused student's guilt. This replaces the previous Trump administration's "clear and convincing" standard. It's not the same standard as beyond reasonable doubt, but it requires considerable evidence and must be substantially more likely to be true than not true to result in punishment. In a slight improvement from the Obama administration, a school can use the clear and convincing evidence standard if they use this same standard in all other comparable proceedings, but it is not required (which is a huge problem).

The new rules also extend the jurisdiction of the Title IX process to incidents that occur outside an educational institution or program as well as outside the country entirely. Schools, yet again, will return to the single investigator model, a disastrous system entailing a single person holding the sole authority to investigate and deliver the decision. We've seen how this plays out before, with these "court proceedings" functioning as kangaroo courts that assume the presumption of guilt over innocence and which are carried out under a single investigator model by none other than biased victim's rights advocates. 

One of the grievance procedures reads as follows: “Title IX coordinators, investigators, and decisionmakers must not have conflicts of interest or bias. As long as a recipient ensures there is no conflict of interest or bias, a decisionmaker may be the same person as the Title IX Coordinator or investigator." A Title IX coordinator having no conflict of interest in an investigation they are self-conducting is an oxymoron. These coordinators are given the power to investigate and deliver a verdict without a hearing, all while having one objective: secure the school's federal funding and appease victims as well as victims' advocates. Whose side do you think they're biased in favor of? Oberlin College, a college that had a 100% sexual assault conviction rate against every male that was accused, was sued by a John Doe for what he regarded as sex-based discrimination and a violation of Title IX. Among the various travesties of justice that took place, he was appointed a Title IX "accuser's representative" with an overt bias for the accusers. This representative not only left in the middle of the hearing but also retweeted a tweet that said "To survivors everywhere, we believe you" just two weeks later. 

Keep in mind that dozens of successful lawsuits against universities that violated men's rights to due process only emerged victorious because they could afford exceptional, pricey lawyers, and many of them succeeded due to previous protections that enabled them to face their accusers and counter their claims through cross-examination during a hearing. But under Biden’s new standards, infamous abortions of justice, like the students who were falsely accused of rape in the Duke Lacrosse scandal, may never be exposed and held accountable. A religion has formed on college campuses that treats survivor advocacy as sacred and, consequently, any healthy skepticism of life-altering claims as blasphemy. Just between the issuance of the 2011 "Dear Colleague letter" and the implementation of Devos's revised 2020 regulations, over 230 lawsuits against colleges were filed by students, alleging that they conducted unfair disciplinary procedures.

Discrimination Against Gender Identity Now Covered Under Title IX

The previous administration defined sexual harassment as "so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity," while the new regulations change this to "subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person's ability to participate in or benefit from the recipient's education program or activity.” This means the bar for what constitutes sexual harassment has been broadened. Title IX may be a federal law instituted in 1972 to protect women from sex-based discrimination, but its scope is now being broadened to include gender identity as well as sexual orientation. 

This, coupled with the expansion of the definition of harassment, means that students from kindergarten through post-secondary education could potentially face disciplinary action for failing to use another student's preferred pronouns. This is the sort of slippery slope legislation that Jordan Peterson risked his career as a professor at the University of Toronto to protest with Canada's Bill C-16. The bill used similar deceivingly benign language like "prohibition of discrimination on the basis of 'gender identity or expression'” but whose broad application can pose much more serious and pervasive concerns regarding compelled speech. 

Students from kindergarten through post-secondary education could potentially face disciplinary action for failing to use another student's preferred pronouns.

The concerns over the criteria for harassment relating to gender identity don't end there. Biden’s new regulations clarify "that a recipient must not separate or treat any person differently based on sex in a manner that subjects them to more than de minimis harm, except in the limited specified circumstances permitted by Title IX" and "recognizes that preventing a person from participating in a recipient's education program or activity consistent with their gender identity subjects that person to more than de minimis harm." It's unclear how wide of a net these regulations will cast and exactly what sort of educational programs are included. Many conservative media outlets and pundits are speaking out, claiming that this gives males posing as women the go-ahead to claim women's scholarships, go into their locker rooms, share their bathrooms, and be housed in the same dorms. 

Biden has purposely side-stepped the issue of trans participation in athletics because, if you haven't noticed, it's an election year, and it happens to be an extremely contentious issue. He had already publicly flirted with the idea of permitting trans participation in women's sports. His administration had proposed a new federal rule that would enforce some restrictions on transgender student-athletes but would make categorical bans against those students from participating on sports teams consistent with their gender illegal. However, in these official Title IX regulations, the issue of trans sports participation is conveniently omitted and will be addressed under separate legislation at a later date.

Protection of Gender Identity Muddying the Waters of What Will Be Permissible or Regarded as Discrimination

Despite the many reports that these new Title IX rules give men free rein to invade female spaces like locker rooms, bathrooms, dormitories, and sports teams, though it is rooted in legitimate and well-established, valid concerns, and while I have no doubt that Biden is moving in that direction, it is a little disconcerting to see how few have truly taken a look at the regulations. There is plenty to oppose, such as the rollback of common sense due process protections for the falsely accused and potential freedom of speech issues that could arise from its expansive definition of sexual harassment. However, the new regulations also clearly state, "The final regulations prohibit a recipient from separating or treating any person differently based on sex in a manner that subjects that person to more than de minimis harm, except in the limited circumstances where the statute allows otherwise, such as in the context of sex-separate living facilities and sex-separate athletic teams.”

The official documents are over 1,500 pages long, so granted, it's no surprise most haven't read the entire thing, but you can, at the very least, read through the fact sheet or the summary of the major provisions. I have no doubt that this will become an issue going forward, and Biden has made no secret about his allegiances, but as the rules stand right now, it does not appear that sex-segregated dorms or sports are in any violation of Title IX. The basis for extending the scope of Title IX to include gender identity was a 2020 Supreme Court decision, Bostock v. Clayton County, which declared that existing civil rights laws protect employees from discrimination based on sexual orientation or gender identity. Conservatives should continue to voice their concerns, and many have filed lawsuits, citing that these new Title IX provisions may conflict with state laws that prohibit trans people from using bathrooms that are not in line with their biological sex. Governor Ron DeSantis said in a video posted on X that Florida will not comply and "we will fight back."

We must stop advocating for “protected” classes of people at the expense of other groups.

The Title IX regulations provide examples of potential sex-based harassment applicable to gender identity, such as harassing someone for failing to meet certain gender stereotypes by "calling him 'girl' and using a feminized version of his name." However, in the next passage, it says, "Many commenters, as highlighted above, believe that misgendering is one form of sex-based harassment. As discussed throughout this preamble, whether verbal conduct constitutes sex-based harassment is necessarily fact-specific. While the final regulations do not purport to identify all of the circumstances that could constitute sex-based harassment under Title IX, a stray remark, such as a misuse of language, would not constitute harassment under this standard." 

This sounds like accidental misgendering would not constitute harassment, but it still leaves the issue of intentional refusal to use someone's preferred pronouns up in the air, potentially meeting the criteria for harassment. Would this also apply to neo-pronouns for people who insist on being called xe, xem, or xer? These are personal issues that do not need to be addressed legally. It has taken the Biden administration two years to produce these new Title IX regulations after announcing the proposed changes due to drawing a record 240,000 comments that were submitted in response to the proposed 2022 version. It's a little ironic that a federal law created to protect women from sex-based discrimination very well may be weaponized against them by biological men. 

Closing Thoughts

While trans people have a right not to be harassed, I don't believe we need legislation that bends over backward to protect the interests of people who make up less than 1% of the population at the expense of women, who may need to accept biological men into spaces where it is not appropriate. The more we curtail the rights of women in favor of trans people, the more disingenuous autogynephiles will take advantage of them, leaving women with no recourse to oppose them.

Men, meanwhile, must accept a ridiculous standard that infringes on their constitutional right to due process, while Joe Biden, accused of rape by former Senate staffer Tara Reade, could hardly withstand these standards himself. We must stop advocating for “protected” classes of people at the expense of other groups. If extending protections to trans people and victims tramples over the constitutional rights of American citizens, we mustn't be afraid to reject it. It's not that trans people or victims of sexual assault don't deserve to be treated with respect and dignity, but that these regulations use duplicitous language that would force schools to accept much more troubling practices or have their federal funding pulled.

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