Title IX of the US Education Amendments prohibits sex-based discrimination at any school or educational program which receives federal funding. The biggest area that we often think of when referencing Title IX is sports and the impact this has on funding available for women’s sports of all kinds. But under Obama, two changes were made that have become controversial. First, evidentiary standards for the investigations were changed, and second, the laws were now said to apply to transgendered students as well.
The standard to prove harassment in a Title IX investigation under Obama became the “preponderance of the evidence”, which is considered a lower threshold than what is required for criminal cases. This changed prompted schools to much more vigorously investigate claims of sexual harrasment in order to maintain compliance and continue to receive money.
But when Betsy Devos entered office in 2017 she proposed that both the changes made to evidence and the protection for transgeneder students were rolled back. It can take awhile for a proposal by the Dept. of Education to make its way into enforcement because there are mandatory public comment periods and congress has the ability to overturn major changes in policy. It took Devos’ proposal 3 years to become official, but it was adopted in 2020.
Now, in 2022, the Dept. of Education still hasn’t released any draft proposal. Title IX has gotten politically hot. The Republican party continues to attack transgender people in their escalating culture war, with a strong focus on Women’s Sports. In addition, Title IX investigations are becoming the focus of hate, reaching a dangerous height when a school in Kiel, Wisconsin became the subject of bomb threats to push administrators to drop an investigation. It is theorized that the divisive nature of Title IX is causing the Dept of Education to try to be really careful about how it proposes to change things.
But because these changes can take so long, advocates are getting nervous. The National Women’s Law Center published an open letter to President Biden pointing out the dire need for a draft proposal.
The danger point approaching for advocates is the midterm elections. This, of course, is a double edged sword. Congress has some authority to reject or change policy at the Department of Education and if November swings Republican, that could mean neutering or completely blocking any changes, meaning that it would be a good idea to get policy over several hurdles before the election results come back. But if the draft is published before the election that could give republicans another way to attack and continue the culture war against transgender students.
There is a narrative (although not a definitive pattern) that the opposition party will gain in the first midterm election a president faces. How that will play out this year is still up in the air.
The Dept. of Education released their Title IX proposal today! You can go read it and comment on it and we will publish a breakdown of the legislation next week.
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