• The Department of Education’s (DOE) latest proposals to rewrite Title IX, which prohibits sex-based discrimination, raises concern for women’s and due process rights, experts told the Daily Caller News Foundation.
• The administration unveiled a June 2022 proposal that expands the regulation to protect transgender students and walks back a Trump-era policy that required live hearings during sexual misconduct allegations, and released an April guidance on athletics that will bar public schools from requiring transgender athletes compete as their biological sex.
• “I think that there are a number of concerns. The gender identity issue, particularly in the context of women’s and girl’s sports, has gotten the most attention because it’s so obviously at odds with what Title IX does,” Bob Eitel, Defense of Freedom Institute co-founder, told the DCNF. 

The Biden’s administration push to rewrite a federal regulation prohibiting sex-based discrimination imperils women’s sports and weakens due process rights on campus, experts told the Daily Caller News Foundation.

The Department of Education (DOE) proposed a new version of Title IX of the Education Amendments of 1972 in June 2022 that would broaden its scope to include gender identity, and a new guidance in April that would bar federally funded schools from enforcing “categorical bans” on transgender athletes. The changes are under final consideration after the athletics proposal received more than 150,000 comments and the June 2022 proposal received more than 240,000, according to Regulation.gov. (RELATED: EXCLUSIVE: House Republicans Press Department Of Education Over Proposed Rule Regarding Title IX)

“I think that there are a number of concerns. The gender identity issue, particularly in the context of women’s and girl’s sports, has gotten the most attention because it’s so obviously at odds with what Title IX does … It seems to be a … contradiction of Title IX itself,” Bob Eitel, Defense of Freedom Institute co-founder who helped former Education Secretary Betsy DeVos craft the Trump administration’s Title IX policy, told the DCNF.

Teresa Manning, a National Association of Scholar policy director and author of the 2020 report “Dear Colleague: The Weaponization of Title IX,” told the DCNF that the Biden proposal would reverse Trump-era Title IX frameworks for sexual assault allegations and employ a “single investigator model” that would centralize investigation responsibilities to one person.

She says that this is a threat to due process, which ensures the fair treatment of people in the legal process.

“We have police, prosecutors, judges, juries, those are all different rules and they’re kept separate to protect an accused party from undue bias in a single individual, but a single investigator or individual meeting method would again combine all those roles,” she explained. “In such a politicized environment, it is incredibly important to keep all these roles separate.”

The new proposal would, additionally, drop a Trump-era Title IX requirement that colleges and universities hold a live hearing to cross-examine the parties involved in sexual misconduct cases, according to the DOE. While opponents argue this weakens due process rights for the accused, supporters allege that it will bolster those who were sexually assaulted to speak up.

“On the #TitleIX anniversary, I can’t think of a more fitting tribute than the Biden Admin today announcing they’ll replace the Trump-DeVos rule that led to survivors being silenced & campus sexual assault being brushed under the rug,” Democratic Sen. Patty Murray tweeted in June 2022. “The new rule will help make campuses safer.”

On the #TitleIX anniversary, I can’t think of a more fitting tribute than the Biden Admin today announcing they’ll replace the Trump-DeVos rule that led to survivors being silenced & campus sexual assault being brushed under the rug.

The new rule will help make campuses safer.

— Senator Patty Murray (@PattyMurray) June 23, 2022

The proposal would also tighten the reigns on what constitutes as sexual harassment in the classroom, Eitel told the DCNF. Under the policy, K-12 employees would be required to report any “conceivable violation of Title IX” that they witness — regardless of whether it is an “actual” or “possible” violation.

“So for instance if you have a biology teacher who has a transgender students who identifies as female but is biologically male, and there is a teacher’s aide in the classroom and that biology teacher refers to the male student who identifies as a female as ‘Mr. So and So,’ the teacher’s aid who observes that would be obligated as a matter of law under the standards proposed by the Biden administration to report that incident to the Title IX coordinator,” Eitel said.

As for the athletics proposal, women’s advocacy groups are sounding the alarm that allowing male athletes to compete in female divisions puts women’s safety and fair play at risk. Several groups submitted public comments urging the DOE to abandon the plan ahead of the Monday deadline.

“The Department’s proposed rule is based on the faulty premise that it is possible to level the playing field when men compete against women. The truth is that, in most sports, this is not possible,” Riley Gaines, a former NCAA swimmer who competed against a transgender swimmer, said in an Independent Women’s Forum statement shared with the DCNF. “But even if it were, we must always remember that Title IX is an equal opportunity law, and allowing biological males to take roster spots or playing time from female athletes makes a mockery of that objective.”

Everyone is entitled to fair & safe play‼️

Join @Riley_Gaines_ and other brave #FemaleAthletes in the fight to save #TitleIX. Submit a comment NOW to stop the Biden Administration’s illegal rewrite ⤵️https://t.co/NQBoW0nRro pic.twitter.com/XrKjjggv3r

— Independent Women’s Forum (@IWF) May 13, 2023

Concerned Women for America, a conservative nonprofit, wrote in its comment shared with the DCNF that the proposal would “erase women’s sports and what it means to be a woman.”

Half of the U.S.’ governors signed a letter to Education Secretary Miguel Cardona on May 12 demanding that it abandon its plan because it would prevent states from enforcing recently passed legislation to mandate single-sex athletic teams. It also alleged that the “proposed regulation would turn the purpose of Title IX on its head and threaten the many achievements of women in athletics.”

The athletic guidance includes a provision that schools could impose restrictions on transgender eligibility to compete as the opposite sex depending on the level of competition and grade-level of the athletes, it reads.

“The athletics [rule] hasn’t pleased anyone, really. The right of center groups think it’s gone too far, school systems find it to be vague and difficult and are concerned that it is expensive to implement and many of the trans groups don’t think that the rule went far enough,” Eitel told the DCNF. “So again, the administration has a lot of work to do and it’s going to take them some time to do it.”

Officials will review all public comments before releasing the final proposals, but the administration may release the June 2022 separately as they face “political pressure” to publish ahead of the 2023-2024 school year, Eitel told the DCNF.

“I think they did propose them separately, so I think that is possible, yes, ” Manning said when asked if this is a possibility. “The timeline there I think is really unknown and we hope that it will take a long time to review the comments that were posted. We did see at the end an avalanche of opposition from pretty heavy hitting public officials.”

Murray and the DOE did not immediately respond to the DCNF’s request for comment.

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