Department of Education reinstates Trump's first-term Title IX rules after Biden's fail in court
Trump's rules granted substantial due process protections to accused students in sexual misconduct proceedings and survived multiple lawsuits. Biological sex goes back to trumping gender identity after Biden rule's defeat.
The Department of Education on Friday notified federally funded educational institutions nationwide it will return to enforcing President Trump's first-term Title IX regulation, which survived at least three court challenges, in the wake of President Biden's far-reaching replacement getting knocked down in court earlier this month.
The 2020 rule for the first time codified "sexual harassment" in Title IX, incorporating the Supreme Court's speech-protective definition, and granted sweeping due process protections for accused students as well as their accusers, requiring live hearings with cross-examination and the same evidence standard for faculty and students, among other things.
It declined to widen the definition of "sex" to include gender identity, as Biden's regulation did, noting that "Title IX and its implementing regulations include provisions that presuppose sex as a binary classification" and the regulation pertains to "prohibited conduct, irrespective of a person's sexual orientation or gender identity."
The "Dear Colleague" letter Friday notes Biden's regulation conflating sex and gender identity and eliminating due process was already blocked in 26 states, meaning Trump's was still in force there, before U.S. District Judge Danny Reeves issued nationwide summary judgment against the prior administration Jan. 9. Biden's own judicial nominees blocked it last fall.
Trump's Education Secretary Betsy DeVos went so far as to say Biden would have faced "hundreds" of Title IX investigations under the Obama administration's loose definitions, later codified under Biden's regulation, based on Biden's historic handsiness with women, including DeVos herself.
The Office for Civil Rights will now enforce the 2020 rule's "definition of sexual harassment, the procedural protections owed to complainants and respondents, the provision of supportive measures to complainants, school-level reporting processes, and the interpretation of 'sex' to mean the objective, immutable characteristic of being born male or female," the Friday letter says.
It agrees with Reeves' analysis of the "fatal" flaws in Biden's regulation, especially turning Title IX "on its head" by including gender identity in the definition of sex and broadening sexual harassment to include "discrimination on
the basis of sex stereotypes, sex characteristics, and sexual orientation."
And given that Trump issued an executive order that agencies enforce "sex-protective laws" on the understanding of an unchanging sexual binary, his interpretation "extends to ED and OCR," acting OCR chief Craig Trainor wrote.
Any Title IX investigation opened under Biden's regulation "should be immediately reoriented to comport fully with the requirements of the 2020 Title IX Rule," he said.
The Biden administration voluntarily withdrew its proposed gender identity and sports regulation before it could be finalized in December, citing ongoing litigation and 150,000 public comments it couldn't review in time.
The Facts Inside Our Reporter's Notebook
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- survived at least three court challenges
- far-reaching replacement getting knocked down
- 2020 rule for the first time codified "sexual harassment"
- presuppose sex as a binary classification
- The "Dear Colleague" letter
- Biden's own judicial nominees blocked it last fall.
- President Biden would have faced "hundreds" of Title IX investigations
- handsiness with women, including DeVos herself
- voluntarily withdrew its proposed gender identity and sports regulation