These days, it seems everyone has something to say about Title IX.
The Education Department received more than 240,000 comments on its proposed regulatory changes to the federal Gender Equality Act, which governs how colleges respond to complaints of sexual harassment and other forms of gender discrimination.
A 60-day comment period ended this week with nearly twice as many comments as the Trump administration’s proposed Title IX regulations in 2018. While Title IX used to be a niche issue in education, it has recently become a way to get people to voice their opinions. on transgender inclusion, freedom of expression and gender theory.
The rule proposed by the Biden administration would expand the definition of sexual harassment that was narrowed under the Trump administration’s interpretation. It would also codify the rights of LGBTQ students, including protections for sexual orientation and gender identity, as well as “gender stereotypes, gender identities, [and] pregnancy or related conditions.”
The proposal would roll back Trump-era requirements for live hearings and cross-examinations, which victim advocates have criticized as retraumatizing survivors in adversarial trials and preventing some from reporting at all. Colleges could once again use the single-investigator model, where a single administrator investigates the allegations and decides whether the accused should be punished. This approach has been frowned upon by due process advocates.
The changes would also mark a return to the Obama-era mandatory reporting policy, requiring most faculty and campus staff — anyone with “teaching” or “advising” responsibilities, as the proposal says — to report any potential gender discrimination to Title IX. to the office now. They would also require colleges to crack down on off-campus behavior that “creates or contributes to a hostile environment.”
Here are three key takeaways Chronicle’s dive deep into the comments section.
Even organizations that have nothing to do with education get involved.
Many of the comments came from grassroots conservative groups that oppose the inclusion of gender identity in the Biden administration’s interpretation of Title IX protections, a change that transgender rights experts say will help make college campuses more inclusive. Organizations such as the Family Policy Alliance and Concerned Women for America have encouraged their supporters to oppose these proposed changes.
Concerned Women for America’s opinion writing guide argued that “women and girls are being denied under the law vital protections based on their female status that have hitherto been guaranteed under Title IX.”
The Family Policy Alliance encouraged its supporters to “tell the Department of Education how redefining sex in Title IX defeats the goal of empowering women.”
The comments section has been flooded with echoes of that sentiment, including claims that the changes to Title IX will lead to cisgenders losing gender-based scholarships to transgender women or otherwise put cisgenders at risk.
According to a search of comments posted by the Federal Register, versions of the following paragraph have appeared approximately 12,000 times: “For fifty years, Title IX has provided important protections and opportunities to women by prohibiting gender discrimination. While parents across the country are calling for the “woke” policy to be rejected, the Department of Education has instead decided to hijack Title IX to force gender ideology on children without their parents’ knowledge or consent. This proposed rule is an illegal interpretation and a complete overreach by the Department of Education,” many commenters wrote.
Many of those comments also describe opposition to transgender students participating in sports, an issue conservative activists have highlighted ahead of November’s midterm elections. But Biden’s changes to Title IX delayed addressing the issue; the administration has said that issue will be addressed in a separate rulemaking process.
Higher education groups say mandatory reporting requirements harm survivors and student-faculty relationships.
In recent years, professors and others have raised concerns about mandatory reporting requirements that force nearly all campus employees to report any sexual misconduct they learn of to the Title IX office. The policy is meant to make sure colleges don’t let accusations pass, but critics say the approach could harm victims who don’t want to come forward to their institutions.
Two dozen comments were submitted using a template from the Academic Alliance for Survivor Choice in Reporting Policies, an organization that says it advocates for institutional reporting policies that give students and others more autonomy over sexual misconduct. Many of these comments were made by faculty members and victims of sexual violence.
“These requirements directly contradict such policies and research on trauma-informed responses and are more harmful to victims/survivors than the Trump administration regulations they replace,” the comments said.
The American Association of University Professors recommended that the Education Department ban mandatory reporting. “Such overbroad policies have a negative impact on teaching and advising relationships, forcing faculty to violate the confidentiality of students and colleagues,” the group wrote in a statement. The AAUP instead advocates modeling the University of Oregon’s reporting system, where only certain administrators and faculty must adhere to reporting requirements — and students are clear about who those mandated reporters are.
Meanwhile, the American Council on Education said in a public comment that it supports efforts to encourage reporting of sexual misconduct. But in a statement, ACE called on the Department of Education to “provide better clarity and help ensure that students, especially survivors of gender-based harassment, can determine in advance whether trusting a particular staff member will trigger a notification to their institution.” The group also wanted employees who conduct gender discrimination research on campus to be exempt from mandatory reporting requirements.
Some fear the changes will roll back free speech protections.
That argument was made in an 89-page commentary by the Foundation for Individual Rights and Expression, known as FIRE.
Biden’s new definition of sexual harassment is broader, according to FIRE, as is the Department of Education’s jurisdiction, which would now control universities’ handling of off-campus sexual harassment. Hundreds of commenters expressed similar concerns.
The AAUP also raised concerns about free speech protections, pointing out that Title IX complaints are likely to disproportionately affect faculty who teach gender studies and related fields. In a statement, the group wrote that “such topics may be offensive or uncomfortable to some students.”
The group recommended adding a caveat to the rule that the institution “must formulate, interpret, and enforce its rules to protect academic freedom, free speech, and due process.”