The Title IX Wars Resume

A ccording to Title IX of the 1972 Federal Education Amendments to the Civil Rights Act “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

In the decades that followed the passing of this law, courts decided that sex discrimination could constitute sexual misconduct, should it result in a woman being denied access to education. In 1999, the Supreme Court decided in Davis v. Munroe that the threshold for such an offense was that it be “severe, pervasive and objectively offensive.” However, the Obama administration lowered the bar considerably in its 2011 “Dear Colleague” guidance letter to schools, favoring a “preponderance of evidence” standard for judgments. The unhappy result of this executive overreach, documented here at National Review, was the formation of kangaroo courts on college campuses across the country.

Betsy DeVos, as Trump’s secretary of education, made solid progress in cleaning up some of the mess left by the previous administration. In 2017, DeVos withdrew the “Dear Colleague” guidance, declaring that “the era of rule by letter is over.” In 2018, the Department of Education then released its notice of proposed rulemaking in regard to sexual harassment under Title IX, in compliance with the Administrative Procedure Act (APA).

The new rules required schools to “respond meaningfully to every known report of sexual harassment and to investigate every formal complaint.” But it also mandated “basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to ‘rape shield’ protections.”

In other words, though accuser and accused would not have to be in the same room at any point during an inquiry, due-process rights were to be reinstated for the accused.

Since Joe Biden made his dissatisfaction with these changes known at the time, it is not far-fetched to presume that a Biden administration would be disinclined to uphold the new rules. The question is: Can his administration do so? The answer is: not easily, at least not without brazenly violating the APA — which is exactly what it means to attempt to impose and enforce laws via a “Dear Colleague” letter in the first place.

Unfortunately, we have little reason to hope that a Biden-Harris administration, in pursuing the erosion of due process on campuses, would have respect for the due process required for executive branch rule-making. Already, the wind seems to be changing, as some on the left have already called for reversals of the legally obtained Trump-era rules.

All while, on another front, a second war is breaking out. To understand how the courts decided that “sex discrimination” under Title IX also constituted sexual harassment, it is necessary to first consider how courts decided this in relation to Title VII, which concerns anti-discrimination in the workplace. The same thing is happening now with regard to “gender identity.”

In 2016 — again by means of a “Dear Colleague” letter — the Obama administration instructed schools and colleges to consider a student’s sex as being whatever his self-declared “gender identity” was. The result was to allow boys (who present as girls) on to girls’ sports teams, with devastating consequences for female athletes, as we have seen with the case in Connecticut. The Trump administration, both via the Education Department and the Department of Justice, retracted this “guidance” too, arguing that if “sex” is to be redefined then that is for Congress or the Court to do.

This added great momentum to one of the biggest recent rulings at the Supreme Court, Bostock v. Clayton County, in which the meaning of discrimination “on the basis of sex” was determined to encompass “gender identity” in relation to Title VII. The Court did not, as some feared it might — and as the Equality Act would — expand the definition of sex to include gender identity. Rather, it said that to discriminate against someone for their “gender identity” necessarily entails discrimination on the basis of sex. The plaintiff’s lawyers put it thus: “But for” the fact that their client had been born male, “she” would have been permitted to comply with the women’s dress code. This, of course, could apply to any male, not just those proclaiming transgender status.

But that was Title VII. What does any of this have to do with Title IX? Nothing — yet. But consider this: the logic of Bostock effectively legitimized “gender identity” — a sinister superstition that the law’s original drafters would not be familiar with — then enshrined it retroactively into civil-rights law. The “gender” tyrant, strengthened by all branches of government, is looking harder and harder to defeat.

In sum, over the next four years, we will likely to see two things happen in relation to Title IX. First, an unwinding of what the Trump administration attempted to correct in relation to sexual misconduct and due process. Second, and perhaps more devastatingly, a full-scale mobilization of the transgender policy agenda. Both of these pursuits fly in the face of basic principles such as due process rights, free speech, biological facts, and fairness. Yay, progress.