Metro Weekly

Education Department Proposes New Rule Protecting LGBTQ Students

Proposed rule expands definition of sex-based harassment to include anti-LGBTQ discrimination, and changes how schools address sexual assault.

Secretary of Education Miguel Cardona – Photo: U.S. Department of Education.

The U.S. Department of Education announced a proposed rule impacting how Title IX, the federal law prohibiting discrimination “on the basis of sex,” will be enforced — including protecting LGBTQ students from discrimination — in schools and colleges that receive federal funding.

Education Secretary Miguel Cardona announced the changes to the way the law is enforced on Thursday, which marked the 50th anniversary of passage of the landmark law. Under Title IX, schools can be denied federal funds if they are found guilty of discrimination, excluding individuals from certain benefits or activities, or allowing harassment to continue without disciplining perpetrators.

Under the Biden administration’s proposal, LGBTQ students would be protected from discrimination based on sexual orientation, gender identity, gender expression, and sex characteristics, and schools that enable such discrimination could potentially lose federal funds.

“As we celebrate the 50th anniversary of this landmark law, our proposed changes will allows us to continue that progress and ensure all our nation’s students — no matter where they live, who they are, or whom they love — can learn, grow, and thrive in school,” Cardona said in a statement.

The administration’s new rule would also change how schools handle sexual assault and sexual harassment allegations, marking a reversal from Trump administration rules that sought to avoid aggressively penalizing individuals accused of assault and harassment, on the grounds that they should be given a chance to defend themselves. But critics, including victim advocates, criticized those rules as discouraging victims from reporting incidents, reports The Hill.

For example, under rules implemented by the Trump administration in 2020, the definition of what constitutes “sexual harassment” was narrowed, expanded the due process rights of those accused of harassment and assault, and required schools to live hearings where accusers and witnesses could be cross-examined. But under the new rule, live hearings will no longer be required, and schools will be allowed to expand the scope of the cases they investigate to include off-campus sexual assaults. Schools will be allowed develop a process to establish the credibility of the parties and witnesses in cases where an allegation of assault is reported, although the new rule doesn’t require cross-examination.

The proposed Title IX rule also expands the definition of sex-based harassment to include “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.”

The rule does not address protections for transgender students competing in college athletics, which will be addressed in a separate regulation providing guidance on how schools should determine eligibility for sex-specific sports teams, reports The New York Times.

Such a rule is likely to spark backlash from Republican-led legislatures in many states, including 18 that have passed laws prohibiting transgender students from competing on teams matching their gender identity. Some of those laws have been blocked from being enforced by federal judges.

As part of the rule-making process, the public will be allowed to comment on the proposed regulation for up to 60 days. The Education Department will then finalize the changes, which could take months to complete.

“Over the last fifty years, our nation has made monumental progress in advancing equity and equality for all students, including by narrowing gender gaps in sports, expanding opportunities in science and technology fields, and protecting students from sex discrimination, including sex-based harassment and sexual violence,” President Biden said in a statement. “Yet there is more to do.

“As we look to the next 50 years, I am committed to protecting this progress and working to achieve full equality, inclusion, and dignity for women and girls, LGBTQI+ Americans, all students, and all Americans,” the president continued.

The announcement of the new role  comes just a day after 150 civil and human rights organizations signed onto an open letter denouncing anti-LGBTQ legislation — which they called “mean-spirited” and “discriminatory” — being introduced in various state legislatures.

“These laws aim to shut transgender youth out of school activities such as sports, to ban them from school facilities such as restrooms, to prohibit discussion of their very existence in classrooms, and to punish educators and families who help young people access necessary gender-affirming care,” groups including the National LGBTQ Task Force, The Trevor Project and the American Psychological Association wrote in the letter, which was circulated by the Leadership Conference on Civil and Human Rights.

“As organizations that care deeply about ending sex-based discrimination and ensuring equal educational opportunities, we support laws and policies that protect transgender people from discrimination, including participation in sports, access to gender-affirming care, access to school facilities, and access to inclusive curriculum,” the groups wrote. “We firmly believe that an attack on transgender youth is an attack on civil rights.”

The Trevor Project, the nation’s top suicide prevention and crisis intervention organization for LGBTQ youth, issued a separate statement praising the proposed Biden administration rule on Thursday.

“School should be a place where students learn and are comfortable being themselves, not a source of bullying and discrimination. The Trevor Project is thankful to the Department of Education for working to protect LGBTQ students, especially transgender and nonbinary students, who have been facing a relentless wave of attacks,” Amit Paley, the CEO and executive director of The Trevor Project, said in a statement.

Our research shows that having access to affirming schools and positive connections with peers and teachers are critical for suicide prevention among LGBTQ young people,” Paley added. “This rule is an important step forward, but we also need the Senate to pass the Equality Act to enshrine federal nondiscrimination protections into law and for school districts across the country to invest in mental health resources and implement LGBTQ-inclusive policies.”

Paul Castillo, senior counsel and students’ rights strategist for Lambda Legal, called the rule a “much-needed step in the right direction.”

“These new rules will provide a stronger, clearer measure of recourse and better ensure that victims of unlawful discrimination can avail themselves of the longstanding protections under Title IX,” he said in a statement. “We will continue to support and defend LGBTQI+ youth to ensure that they and all students are able to live their lives with the dignity and respect that every human being deserves.”

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