‘Just a Disaster’: Biden’s Title IX Rule Empowers LGBTQ Movement, Erases Women and Justice

The Biden administration’s revision of a civil rights statute designed to protect women’s rights in education erases women’s protections, rewrites landmark civil rights legislation to advance the LGBT agenda by federal fiat, and waters down legal standards for those falsely accused of sexual harassment.

The Biden administration obliterates the unique rights intended for women and girls by claiming Title IX’s prohibitions of discrimination against females in education apply to men who identify as women — regardless of their outward appearance — as well as those who identify as homosexual. Its “unofficial final rule,” released on April 19, now claims LGBTQIA+ activists may cite protections intended for women to accuse their fellow students of discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

The term “gender identity” appears 289 times in the 1,577-page document.

The new rule also requires that these “discrimination” allegations only meet the lowest standard of proof, known as the “preponderance of the evidence.” The rule — announced by Catherine Lhamon, the Education Department’s assistant secretary for civil rights — also establishes “equitable grievance procedures.”

“They have completely demolished protections for women,” Meg Kilgannon, senior fellow for Education Studies at Family Research Council, told “Washington Watch” guest host Joseph Backholm last week. “It’s just a disaster.” The new proposed rule “impacts speech. It impacts a free and appropriate education.”

In a comment emailed to The Washington Stand, Alliance Defending Freedom Legal Counsel Rachel Rouleau called the new rule “a slap in the face to women and girls who have fought long and hard for equal opportunities.” The Biden administration’s “radical redefinition of sex turns back the clock on equal opportunity for women” and “will have devastating consequences on the future of women’s sports, student privacy, and parental rights.”

The Biden administration’s federal fiat — never approved by legislation — rolls back regulations instituted in May 2020 by then-Secretary of Education Betsy DeVos that reestablished legal norms and standards for those accused of sexual harassment.

Obama administration rules — also drawn up by Lhamon, a former ACLU attorney — allowed college sexual harassment investigations to be carried out by a single investigator, who acted as judge and jury. Vague definitions proscribing any “unwelcome conduct,” whether verbal or “nonverbal,” led school districts to punish students for unwelcome staring.

Under the Trump administration’s revised Title IX rules, anyone accused of sexual harassment on campus enjoyed the presumption of innocence, as in any other legal proceeding. The defendant also had the right to know the charges against him or her, examine all the evidence presented in the proceedings, have an adviser cross-examine any witness’s testimony, and appeal the ruling. The administration had to meet the more robust and normative legal standard of “clear and convincing evidence.”

At the time, Lhamon asserted that the Trump administration’s revised guidelines would make it “permissible to rape and sexually harass students with impunity.” No epidemic of unpunished campus rape followed.

The Biden administration’s new Title IX rule eliminates all these elements, which are standard in other consequential accusations.

“The final regulations restore and strengthen vital protections for students,” Biden’s Department of Education contended in a press release Friday.

All parties seem to acknowledge these rules will supercharge the number of sexual harassment cases on campus after it takes effect on August 1. “This rule is designed to encourage reporting,” a Biden administration official told journalists on a call Thursday.

Newly empowered with looser regulations, activist bureaucrats in the federal government, and on college campuses nationwide, “are going to enforce this rule, and they are going to enforce it aggressively,” predicted Kilgannon. “The Education Department laid down their marker and said, ‘Yes, indeed, you will face a penalty for this.’” States that refuse to implement the strategy will “be losing federal funds for your education programs in your state.”

Since more affluent areas, like the D.C. suburbs, rely more on property taxes to fund their schools, the threat of losing federal education dollars falls heaviest on the most vulnerable students living in underprivileged districts. “It is the poorest places who will be most harmed by this, because they rely the most on federal funding,” Kilgannon added.

To avoid running afoul of an activist bureaucracy’s interpretation of the newly broadened rule, education officials may shut down any speech that could turn into litigation, and threaten federal funding.

“This change reverses decades of progress toward equality, open discourse, due process, and parental rights,” observed the Southeastern Legal Foundation. The new rule will cause students to “self-censor rather than risk being reported for harassment” and “significantly undermines the role of parents — who should be the primary caregivers for their children and who are entitled to raise their children to share certain values and beliefs — by requiring conformity to the federal government’s views on biology and so-called gender identity.”

The regulations drew fire from Congress over these specific concerns. “Evidently, the acceptance of biological reality, and the faithful implementation of the law, are just pills too big for the Department to swallow,” said Rep. Virginia Foxx (R-N.C.), chair of the House Education and Workforce Committee.

The new regulation pulls off a trifecta of administrative harm, as it “attacks the definition of sex, due-process rights, and free-speech rights,” said Inez Feltscher Stepman, a senior policy analyst at the Independent Women’s Forum.

The regulation also continues the decades-long trend of rewriting legislation through executive action. “Title IX was written in 1972 when ‘sex’ meant male and female, and no amount of interpretive jiujitsu permits a cabinet agency to rewrite the plain language of the law. Efforts to do so have failed repeatedly in Congress for one simple reason: Such an expansion of law is deeply unpopular, with opposition to these changes spanning both political and racial lines,” said Nicole Neily, president of Parents Defending Education, in a comment to TWS. Numerous polls have shown a supermajority of Americans oppose the extending of women’s rights to men, regardless of their self-identity.

“It is grotesque that the White House has chosen to capitulate to extremists in his party, sacrificing the First Amendment” in the process, Neily told TWS.

Women’s rights activists promise not to take the loss of their distinct place in the law lying down. “This is going to be the subject of lawsuits,” Kilgannon told Backholm, citing direct knowledge of multiple civil rights attorneys and organizations. Neiley told TWS explicitly, “This betrayal of students will not soon be forgotten by American parents, and we look forward to suing the administration over this policy soon.” Likewise, Rouleau told TWS that the “Alliance Defending Freedom plans to take action to defend female athletes, as well as school districts, teachers, and students who will be gravely harmed by this unlawful government overreach.”

AUTHOR

Ben Johnson

Ben Johnson is senior reporter and editor at The Washington Stand.

The Washington Stand is Family Research Council’s outlet for news and commentary from a biblical worldview. The Washington Stand is based in Washington, D.C. and is published by FRC, whose mission is to advance faith, family, and freedom in public policy and the culture from a biblical worldview. We invite you to stand with us by partnering with FRC.

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