Biden's new Title IX rules enshrine gender identity as protected status, rollback due process protections for accused students

The Biden administration's new rules for Title IX enshrine the concept of gender identity, over biological sex, as something to be protected, and rollback protections for those who are accused of sexual misdeeds that were put into place under the Trump administration.

The rules take effect August 1, before the start of the new school year.

Protections and set asides that were meant for women and girls are now legal protections for men and boys who say they are female. The issue of participation in sports was left out of the new rules, with a separate rule already proposed that would eliminate blanket bans on cross-sex participation in sex-segregated sports.

The new rules reverse the due process protections for those accused of sexual assault or harassment on unversity campuses. Under Trump's rules, accused persons were entitled to live hearings where complaints against them could be adjudicated and had the right to face their accusers.

That right has been revoked under the new rules, the claim being that "cross-examination could retraumatize assault survivors," the Washington Post recaps.

The new rules allow the university to question the accuser without the accused being present or being permitted to ask any questions. How guilt is determined has also been watered down. The new standard to determine guilt will be a "preponderance of the evidence," and does not have to be based on "clear and convincing evidence," although universities may choose which course to follow.

Under Trump, a school could not use the higher standard in some settings and the lower standard in cases of sexual assault accusations. 

On that point, director of the White House Gender Policy Council Jennifer Klein said that the new rules would "restore and strengthen vital protections that were weakened by the prior administration, while reaffirming our longstanding commitment to fundamental fairness."

Yet critics of the lapse in these protections, such as FIRE's legal director Will Creely, say that these new rules diminish justice. "Justice," Creely said, "is only possible when hearings are fair for everyone. So today's regulations mean one thing: America's college students are less likely to receive justice if they find themselves in a Title IX proceeding."

The new Title IX rules "prohibit all forms of sex discrimination, including based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity." This means that gender identity and biological sex carry the same status under the provision.

While the rule does not directly address the problem of trans-identified males playing women's sports, a second proposed rule would do that. This proposed change for students' eligibility for athletic teams would remove the ability of schools to have a blanket ban against males playing in female competition. Instead, it would require schools to "recognize that there are differences among students and school sports teams depending on grade and education level."

"Men are the new women," senior advisor to the Concerned Women for America Legislative Action Committee Doreen Denny. "Transgender identity is the new sex. Males like Lia Thomas declaring 'womanhood' have the upper hand in civil rights claims under this Biden rule. A male’s feminine feelings and desires are prioritized over any psychological turmoil foisted on female students and athletes suffering the injustice."

"The disadvantage and harm goes one way: female students are being assaulted in school restrooms; female athletes are forced to surrender their privacy in the locker rooms and have their opportunities and achievements stolen in their own sports," Denny said.

It extends these same status equalizers in laying out rules for "sex-based sexual harassment," going further to say that if a male student is subjected to any behavior that "creates a hostile environment" that "denies or limits a person's ability to participate in or benefit from the recipient's education program or activity" it would be the women who don't want the man in their space who are in violation of Title IX and subject to penalties.

"These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights," Biden's Education Secretary Miguel Cardona said.

The whole program of equivocating biological sex with gender identity must be part of an education program so that all participants are aware of just what constitutes harassment and violations of the rules.

In making the new rules, Biden's Education Secretary Miguel Cardona leaned into a recent Supreme Court decision which guaranteed that men who say they are women must be provided access to women's only spaces and provisions in the workplace. That ruling, however, was intended to be extremely narrow.

The majority opinion, delivered in 2020 by Justice Neil Gorsuch, addressed the question of spillover of the decision into other facets of law. "The employers worry that our decision will sweep beyond Title VII to other federal or state laws and prohibit sex discrimination," he wrote. "And under Title VII itself, they say sex-segregated bathrooms, locker rooms, and fress codes will prove unsustainable after our decision today."

"But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today," Gorsuch wrote, saying essentially that the ruling was meant to be interpreted narrowly, and not broadly, as the Department of Education has now done. 

"Under Title VII," Gorsuch went on, "too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employee who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual 'because of such individual's sex'."

Now that very ruling has been used to diminish and do away with sex-based protections for women and girls in university settings, the claim being that to disallow men from women's spaces and protections would be to discriminate against those men on the basis of their sex.