The Department of Education is seeking to rewrite Title IX rules to include gender identity and to remove due process protections for those accused of sexual misconduct, a move that is now facing opposition from those who claim it will harm the integrity of women’s sports, endanger students, and strip away the presumption of innocence.
Title IX is a federal civil rights law first passed in 1972 that prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. Among other things it ensured that women’s athletics were equal to men in terms of program budgets, expenditures, number of participants, value of scholarships, and so forth.
In 2011, the Obama administration expanded Title IX guidance to include sexual harassment and sexual violence, labeling it a civil rights issue, and tying federal funding to how effectively the schools addressed this issue. Unfortunately, the result was that schools began holding kangaroo courts that put more emphasis on the rights of accusers than on the accused, denying them even basic due process protections, such as the right to confront their accuser or call witnesses on their behalf. In 2020, after a careful two-year-long process, the Trump administration implemented new rules that “balanced the scales of justice” by ensuring that students accused of crimes would have the same basic due process rights as any other defendant.
Now, however, the Biden administration seeks to expand Title IX to require schools to allow students to participate in sports programs or use same-sex facilities according to their gender identity. The administration also plans to revert back to the sexual misconduct Title IX guidance put in place under the Obama administration.
The move faces challenges from many detractors. Critics include 27 parents groups who collaborated to send a letter to Education Secretary Miguel Cardona urging him not to include gender identity in Title IX. “We represent parents, grandparents, and concerned citizens across the country who are worried that the forthcoming rule changes are a politicized effort to placate activists,” they wrote. “In fact, the sweeping changes to Title IX that you are reportedly set to announce would erode the very rights that protect all students — regardless of sex — and ensure a safe and equitable learning environment.”
The parents groups praised the changes made by the Trump administration, changes the Biden administration wants to overturn. Those changes “bolstered key Constitutional and civil rights principles, including freedom of speech, academic freedom, support for alleged victims, presumption of innocence and due process for alleged perpetrators, and a prompt and predictable grievance process that requires clear and convincing evidence,” they wrote.
“These basic due process protections have formed the bedrock of established civil rights jurisprudence for centuries,” they added. “There is simply no demonstrable reason to eliminate a set of due process rules that uphold the fundamental protections of our legal system that, when implemented, were badly needed to remedy a well-documented pattern of abuses — abuses that will return if these rules are rescinded.”
The Department responded, “The Department deeply values input from parents and families as they are a critical part of a school community. The Department is committed to ensuring that schools are providing students with educational environments free from discrimination for all students, which is the law Congress wrote in Title IX and a goal we hope all educators, families, students, and leaders share.”
They added, “In line with this goal and as the Department has previously stated, the Department anticipates updating Title IX regulations this spring.”
Parents’ groups aren’t the only ones opposing the changes. Female athletes also are making their voices heard. The anger at decisions by the NCAA and other athletic governing bodies to allow biological males to compete in women’s sports heated up after University of Pennsylvania swimmer Lia Thomas, a male, won a national championship.
Marshi Smith, a former national champion and President of Women for Fairness in Sports (WomenFINS), said, “There’s been so much wreckage on the path to this victory by Lia Thomas,” thwarting the, “lifelong ambition and dream,” of thousands of women. Young Women for America ambassadors Chloe Satterfield and Macy Petty held a Save Women’s Sports rally outside the stadium where Thomas won and said that family members of other swimmers thanked them “in tears” for fighting for them.
The swimmers “knew they lost before they even walked in … despite probably 10, 15 years of hard work for this very day,” Petty said. She remarked that Thomas was ranked 462nd in men’s swimming before becoming No. 1 in women’s competition.
Satterfield said she lost a tennis match to a transgender opponent, noting that the thousands of dollars her family spent in training couldn’t measure up to her opponent’s biological advantage.
Meanwhile, 15 states’ attorneys general have promised to sue if the U.S. Education Department moves ahead with the changes. “We are prepared to take legal action to uphold Title IX’s plain meaning and safeguard the integrity of women’s sports,” Montana Attorney General Austin Knudsen wrote.
“We therefore urge the Department to halt its effort and not disturb the current Title IX regulations,” their letter says. “The Department should also not illegally re-write Title IX to include gender identity. Make the right choice for the rule of law as well as students, parents, teachers and schools.”
Regarding the removal of due process for those accused of sexual misconduct Knudsen said to imagine if the White House told every criminal prosecutor to remove the right to a defense and make them judge and jury.
Title IX was written to protect women from discrimination and allow equal opportunity. The law was never intended to include gender identity. By allowing biological males to intrude on female spaces, females are denied the opportunities that Title IX was intended to provide. Both males and females are entitled to the separate spaces Title IX allows and it is wholly inappropriate to force them to compete against or share a private area with the opposite sex. The Biden administration is opting for this route because it can’t get a law passed to force the views of LGBTQ activists on Americans.
While the primary focus of this controversy is on the inclusion of gender identity, the due process element is of critical importance as well. Under the Obama administration, if a student was accused of sexual misconduct, they were likely to be kicked out of school. There was no presumption of innocence or fair trial, and guilt was established not by the “beyond a reasonable doubt” standard but by a “preponderance of the evidence.” The Trump administration put in place common sense protections, including allowing cross-examination of all witnesses and not allowing a single investigator to both gather evidence and judge the case.
To remove these protections would put students in jeopardy of real injustice. The stories of male students who were falsely charged or railroaded by university courts overseen and investigated by incompetent and vengeful history, sociology, and other non-lawyer professors is long and disturbing. At present, hundreds of male students have sued schools for having had their due process rights violated and being wrongfully convicted, and they have won more often than they’ve lost. These victims include Cieran McKellan, a Scottish footballer who was falsely accused of rape while attending Duke University and suspended for six semesters in 2015, and a University of California-Davis student who had to spend $12,000 defending himself against an accusation of brief nonconsensual touching, which also turned out to be false. Others were expelled, denied their hard-earned diplomas, or lost job offers, and at least one was deported. All had their reputations besmirched and their futures ruined.
None of these stories, however, are as disturbing as that of Darold Palmore, a black student who was falsely accused of sexual assault by a white female student while at Clarion University. The university purposefully withheld exculpatory security camera footage, so after kicking him out of school and turning his case over to a local prosecutor, Palmore was falsely convicted of felony sexual assault. He served 16 months in state prison before an appellate court overturned his conviction and granted him a new trial in which a jury exonerated him. Palmore has since filed a suit against Clarion and its police department, but, of course, that won’t restore his lost youth, career, and reputation.
Given this record of real injustice, why would the Biden administration want to go back to it? And why would they want to let biological men compete against biological women and ensure that women are put at the same disadvantage that Title IX was supposed to protect against? Those are both reasonable questions of basic fairness for which, unfortunately, the Biden administration doesn’t seem to have any reasonable answers.