Education Week - July 13, 2022 - 12

Proposed Title IX Overhaul:
Key Questions on What's Next
The U.S. Department of Education's proposed rules covering
sex discrimination in education enter the public comment process
By Libby Stanford
Proposed changes to federal Title
IX rules could mean broader protections
for LGBTQ students and clearer
processes for reviewing sexual assault
and harassment allegations. But it will
be months before schools and educators
know just how far those protections
will go.
The U.S. Department of Education
released the 700 pages of proposed
rules on the 50th anniversary of the
landmark legislation that banned
sex discrimination in schools, colleges,
and universities. For the first
time, Title IX would include sexuality
and gender identity in the definition
of sex-based discrimination. The
proposed rules would also roll back
Trump-era policies that established
stricter processes for reviewing cases
of sexual assault and harassment.
But the proposals leave plenty of
room for interpretation in key areas
and sidestep others, including the
controversial issue of transgender
students' participation in sports.
Here are a few key things to consider
during a 60-day public comment
period, after which the Education
Department will issue final
regulations.
What constitutes 'discrimination'
for LGBTQ students?
With the explicit mention of gender
identity and sexuality in the proposed
rules, LGBTQ students would have an
easier time claiming that they've been
discriminated against.
" I want the same opportunities
afforded to my daughter, and my
son, and my transgender cousin so
they can achieve their potential and
reach their dreams, " U.S. Secretary
of Education Miguel Cardona said in
a speech announcing the proposed
rules on June 23.
But the proposals still leave room
for interpretation.
For example, they would clarify
that schools would not be able to
discriminate based on " sex stereotypes,
sex characteristics, pregnancy
or related conditions, sexual orientation,
or gender identity. " The Education
Department included extensive
definitions of each type of discrimination.
Among those, rules clarify
that sex stereotypes include " fixed
or generalized expectations regarding
a person's aptitudes, behavior,
self-presentation, or other attributes
based on sex. "
But even with expansive definitions,
it remains to be seen how the
rules would actually impact LGBTQ
students. For example, the rules do
not specify that schools must use
Movement Advancement Project, a
think tank dedicated to researching
social issues.
What impact will the proposed
regulations have on state laws
relating to LGBTQ issues?
The proposed rules come after a
year of state and local efforts to limit
the discussion of sexuality and gender
identity in classrooms, prevent parents
from seeking gender-affirming care for
their transgender students, and ban
books with LGBTQ-related content.
The Biden administration has
taken a strong stance in opposition to
those efforts. On June 15, President
Joe Biden signed an executive order
on LGBTQ equality, directing the Education
Department to support students
who are affected by " harmful
state and local laws and practices. "
Local and state lawmakers have proposed
300 discriminatory bills, the
president said.
While Title IX doesn't override state
and local laws, it does give the federal
government the power to remove
funding from educational institutions
that violate it.
The Education Department's office
for civil rights is tasked with evaluating,
investigating, and resolving sex
discrimination complaints. The office
also investigates " systemic violations
based on sources of information
other than complaints, " according to
its website.
The proposed rules provide more
a student or educator's preferred
pronouns, an issue that has sparked
a handful of state and federal court
cases.
They also don't expressly require
schools to allow students and employees
to use restrooms that are consistent
with their identities. Restroom
use has been at the center of fierce
fights in state and federal court cases.
In Grimm v. Gloucester County School
Board, a federal appeals court ruled
that the Virginia school district violated
Title IX when it refused to allow
Gavin Grimm, a transgender man, to
use the men's restroom. The school
district unsuccessfully tried to appeal
that decision last year, when the U.S.
Supreme Court declined to take it up.
Nor do the proposed rules address
efforts to remove LGBTQ-centered
books from libraries or prevent discussions
of gender identity and sexuality
in the classroom. Between July
2021 and March 2022, nearly 3,000
schools have banned books, many
of which had LGBTQ-related content,
according to a study from PEN
America, a free-speech advocacy organization.
What
will happen to transgender
athletes?
The proposed rules sidestepped
one major question: Does Title IX
require schools to let students play
a sport that is consistent with their
gender identity? The Education Department
will conduct a separate
rulemaking process to determine
Title IX's relation to athletics. Department
officials weren't able to
12 | EDUCATION WEEK | July 13, 2022 | www.edweek.org
provide a timeline for that process.
But even without an official stance,
LGBTQ advocates are encouraged by
some of the wording used in the proposed
regulations.
The proposed rules state that
" adopting a policy or engaging in a
practice that prevents a person from
participating in an education program
or activity consistent with their gender
identity subjects a person to more
than de minimis harm on the basis of
sex. " The rules clarify that some programs,
such as single-gender schools,
would be allowed under Title IX as
long as they don't cause more than
" de minimis, " or insignificant, harm
on students.
That wording by itself may be a
hopeful sign for people who want to
allow transgender athletes to participate
in sports consistent with their
identity, said Elana Redfield, federal
policy director for the Williams Institute,
a University of California-Los
Angeles research center dedicated to
LGBTQ issues.
" That seems to be suggesting that
even in programs where it's deemed
to be OK-for example, athletics
separating women and men-they're
still going to look for whether there's
disproportionate harm to a particular
individual or group of people, " Redfield
said.
Transgender athletes still are likely
to remain in the throes of a battle over
their rights while federal officials conduct
a separate review process. Eighteen
states have passed laws preventing
the ability of transgender youth to
participate in sports consistent with
their gender identity, according to the
U.S. Education Secretary
Miguel Cardona speaks at a
White House event in April.
"
That seems to be
suggesting that
even in programs
where it's deemed
to be OK-for
example, athletics
separating women
and men-they're
still going to look
for whether there's
disproportionate
harm to a particular
individual or group
of people.
ELANA REDFIELD
Federal policy director for the
Williams Institute, University
of California Los Angeles
clarity on Title IX processes for review
of sex discrimination, harassment,
and assault cases. They would
require schools to adopt procedures
that allow for " prompt and equitable
resolution of complaints. " Schools
would also be required to use the
Obama-era " preponderance of evidence "
standard for evaluating complaints,
which is a less strict standard
than the Trump-era " clear and
convincing evidence " requirement.
What comes next?
The proposed rules have sparked opposition
among conservative lawmakers
and policy groups that have called
on parents to fight back. The groups,
including the Heritage Foundation and
Parents Defending Education, argue
the rules on Title IX processes disenfranchise
the accused and believe the
added rights for LGBTQ students push
a liberal agenda.
In a statement released June 23,
Nicole Neily, president of Parents
Defending Education, referred to the
rules as the " Must Say They " Title IX
rewrite, alluding to pronouns often
used by nonbinary people. The proposed
Title IX rules wouldn't explicitly
require schools or students to use
they/them pronouns.
" The Biden Administration's
'Must Say They' Title IX rewrite is
a show of force by the federal government
on behalf of activists that
would unconstitutionally compel
the speech of schoolchildren and
college students, " Neily said in a
statement.
The proposed rules will be available
for public comment on regulations.gov
for 60 days after they are
published to the Federal Register.
Susan Walsh/AP
http://www.regulations.gov http://www.regulations.gov http://www.edweek.org
Education Week - July 13, 2022

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