Daily Hampshire Gazette – Columnist Carrie N. Baker: The President Matters – Title IX, Gender-Based Violence and LGBTQ Discrimination

US presidents have a huge influence on our laws. As head of the executive branch, presidents are responsible for enforcing civil rights laws. Democratic presidents are credibly strengthening reproductive rights, strengthening protections against sexual violence, and eliminating discrimination against women and LGBTQ people. Republican presidents are violating these rights. One recent example is the enforcement of Title IX, a law that prohibits schools receiving federal funds from discriminating against students on the basis of gender.

The act, passed by Congress in 1972, was used to support women’s equality in education. In the 1980s, women’s rights advocates convinced federal courts to interpret Title IX to prohibit sexual harassment because it was an obstacle to equal education for women. In mid-2010, in response to demands from student advocates, President Obama’s Department of Education expanded Title IX to require schools to also address sexual violence.

Shortly after Donald Trump took office in 2017, the Department of Education, under his leadership Betsy Devos, rolled back Obama’s protections against sexual violence. In August 2020, Trump issued new regulations that made it much more difficult for victims to file complaints of sexual harassment and assault. Trump’s rules only covered sexual harassment that was “severe, pervasive and objectively offensive,” required live interviews, forced survivors to submit to questioning by the accused’s representatives and allowed survivors’ testimony to be excluded if they refused to be investigated.

During his presidential campaign, Joe Biden promised to repeal Trump’s regulations. On April 19, 2024, the Biden administration finally published new federal regulations strengthening protections for students who have experienced sexual violence. Biden’s legislation expands the definition of gender-based harassment, eliminates the requirement for live interviews with victims and requires quick investigation of complaints. They also reversed Trump’s policy of allowing schools to resolve cases involving students through mediation rather than investigation – a practice previously banned by Obama. Mediation assumes a level playing field that does not exist between the survivor and the alleged perpetrator.

On the burden of proof, Biden rescinded Trump’s rule allowing schools to require survivors to prove their claims with “clear and convincing evidence,” even as they allowed a lower “preponderance of the evidence” standard in other campus disciplinary cases. Finally, unlike Trump, Biden’s regulations apply to online sexual harassment, as well as sexual misconduct that occurs in study abroad programs or in off-campus housing, as long as the misconduct affects the victim’s education.

In addition to addressing sexual violence, Biden’s new regulations clarify that Title IX protects students from discrimination based on “pregnancy or related conditions,” including termination of pregnancy, and discrimination based on “sex characteristics … sexual orientation and gender identity.” . The second part of this policy is based on the Supreme Court’s June 2020 decision in Bostock v. Clayton County, which held that federal law prohibiting sex discrimination in employment includes discrimination based on sexual orientation and gender identity. Biden’s regulations apply this principle to Title IX. The new regulations, which will enter into force on August 1, 2024, do not apply to sports, which will be regulated in separate guidelines that will appear by the end of the year.

“By repealing the Trump administration’s harmful and restrictive sexual harassment policies and increasing transparency in protections for survivors of violence, pregnant students and parents, and LGBTQIA+ students, this rule will ensure every student has the freedom to learn and be themselves,” the press release said. by Equal Rights Advocates on behalf of a coalition of over 20 organizations supporting the new regulations. Advocates hope to use the legislation to challenge state laws that discriminate against transgender students.

Right-wing opposition to these new laws was swift and fierce. Republican attorneys general from at least 15 conservative states have already filed four lawsuits challenging new protections for LGBTQ students. Meanwhile, The Heritage Foundation, a wealthy right-wing think tank, released a detailed 887-page policy agenda for the next Republican president that includes rolling back new Title IX regulations as well as LGBTQ rights.

The stakes are so high in the 2024 presidential election, including women’s and LGBTQ rights. President Biden has long been a champion of women’s right to be free from violence. He led the passage of the Violence Against Women Act in 1994, authored the Obama-era Title IX regulations to protect students from sexual violence, and has now fulfilled his commitment to restore those Title IX protections. On the other hand, Republicans are committed to eliminating Title IX protections against gender discrimination and sexual violence. The difference is clear.

Please call your members of Congress and ask for increased funding for the Department of Education to enforce Title IX to ensure that every young person has access to an education free from gender discrimination, sexual harassment and sexual assault. And be sure to vote in the November election. Our rights depend on it.

Carrie N. Baker is a professor in the Women’s and Gender Studies Program at Smith College and a regular contributor to Ms. magazine.