Morning Wire - Biden’s Radical Overhaul of Title IX | Saturday Extra

Episode Date: April 27, 2024

The Biden Administration announces sweeping changes to Title IX which will impact gender identity and due process. Get the facts first with Morning Wire. Learn more about your ad choices. Visit podcastchoices.com/adchoices

The Biden administration has massively altered Title IX, mandating that schools include transgender, non-binary, and other LGBT gender identities to their sex discrimination protections. The White House also reversed due process protections put in place by the Trump administration. In this episode, we talk with former Senior Counsel at the U.S. Department of Education, Sarah Partial Perry. She's done a deep dive on the new Title IX rules and warns that it's going to have sweeping and damaging implications for both women

and Men. I'm Daily Wire editor-in-in-chief John Bickley with guest co-hosts Sage Steel, host of the Sage Steel Show. It's Saturday, April 27th, and this is an extra edition of Morning Wire. Joining us now to provide a deep dive into the changes to Title IX made by the Biden administration is Sarah Partial Perry, senior legal fellow at the Heritage Foundation. Sarah, thanks for joining us. Happy to be here. So we've had some major developments here with Title IX rule changes that are seismic, really, and their potential. There's a lot of misconceptions, too, around what's been changed and what hasn't been changed. Can you first walk us through what the Biden administration has changed with Title IX?

So they have changed the entire function and applicability of a law that's been around for more than 50 years that simply prohibits sex discrimination in any federally funded education program. And that means a dollar of federal funding received, whether directly or indirectly. And the most seismic change. And the first that most people think of is that they have expanded the definition of sex to include not just biological sex, but distinctions between gender identity, sexual orientation, pregnancy or related conditions, which includes abortion, and any sex or gender expression. Now, you can see in a law that's been around since the early 70s, exactly how size, seismic that transformation is, because what was passed is sort of the crowning jewel of achievement

for the feminist movement is really going to upend the equality of women and girls all across the country in every single education program that accepts so much as a dollar of federal funding. And what they've also done is they have changed the process for investigations on college campuses of sexual harassment or sexual misconduct. And, we've gone back now under this administration's rule to what's called the single investigator model. We like to call these lovingly or not so lovingly kangaroo courts, which is to say that a single unelected college bureaucrat, many of whom are just out of college or just out of grad school themselves, gets to determine whether or not an individual who is charged with sexual assault or sexual harassment

has actually committed that offense. And not only are they no longer allowed to, to have what we considered standard due process protections, the right, for example, to be represented by an attorney, cross-examine, introduce evidence. That has disappeared. Now we have gone from a clear and convincing standard to now a preponderance of the evidence standard, which is to say about 51%.

So one person gets to determine the future of an individual's educational and career opportunities and could essentially make a determination, that would leave a mark on this individual's future academic record for all time. And then on top of everything else, as if that was not bad enough, this is actually going to shoehorn speech codes, which we know are unconstitutional, into every publicly funded education program. Because now, and this is out of Catherine Lehman, Assistant Secretary for Civil Rights, her mouth itself, just on Friday, if you misgender someone, you can be subject to a Title IX

complaint for sexual harassment under their new guidelines. So they're forcing in an unconstitutional speech code. So to say that the application and the sort of upending of the way we have understood education to operate for more than 50 years is seismic is certainly not an overstatement. There's obviously a lot to unpack here. First of all, when you say federally funded educational programs, what all does that include? So I think a lot of people believe immediately that title line is simply what they call the athletics rule and that it only applies to public universities or public colleges at that when in fact this applies to everything from head start preschool programs through K through 12 through private colleges, private charter schools, no matter whether your

institution is private or public, if it accepts, for example, an individual on, let's say, reduced lunch program or someone on, for example, a Pell Grant or federally funded student loans, your institution, your program, your organization, even trade schools, are going to be subject to this particular rule. Well, you can imagine now that that means even for educational institutions that don't, for example, have athletic programs. It still applies to everything from bathrooms, to locker rooms, to housing accommodations, to speech codes, no matter how much federal funding is actually involved. So to say that this is the vast majority of institutions in the country, that is absolutely accurate. I think many people think, well, it's just athletics,

and it's just for the big NCAA schools. And that's entirely a misunderstanding of the rule. The application here is going to be just about every educational program. the country. So to be clear, if you do not abide by these rules, your federal funding is stripped. Absolutely. The federal government has an opportunity to perform what's called a directed investigation. And that means that they go in and determine if actually the sex discrimination provisions that are claimed in a complaint have actually transpired. And they will give an educational institution, an opportunity to defend themselves, but they make very clear that if you do not adhere to their definition of sex to include gender identity, you are automatically subject

to disciplinary action from the federal government. Let's unpack the gender identity element of this more. What are the implications of this change? Oh, it's hard to overstate them, but it really does, you realize, stem from a very simple one-sentence. prohibition from the education amendments of 1972, of which Title IX was a part. And all it says is that discrimination in any federally funded program on the basis of sex is prohibited. So you can see how expanding that to gender identity could be catastrophic because, in fact, as a law, designed to ensure women and girls' equality in all federally funded education, by expanding that to gender identity. It's going to be significant. And we're going to see it applied through any institution,

up, down, and sideways. Congress had a chance to amend sex to include gender identity in 1987, when it reauthorized the law under the Civil Rights Restoration Act, but it chose not to do so. And the law itself is actually the result of more than 250 versions of bills that went back and forth between House and Senate committees. This was long deliberated, long debated, and was the result of quite a number of stakeholders weighing in. So to say that you can pluck from thin air, a definition of sex to include gender identity is really disingenuous, and we're hoping ultimately that a federal court strikes it down. All right, so changes like this would include men being allowed to participate in women's sports, men being allowed to go into women's locker rooms, join their clubs,

sororities. Is this correct? Absolutely. And in fact, the administration has disavowed that this rule touches impacts or includes sports. But again, having been on a stakeholder call with Catherine Lehman, the Assistant Secretary for Civil Rights, just a few days ago, she was asked a direct question. Is the Department of Education continuing with rulemaking on Title IX's athletics rule? Remember, there were two rules, one proposed in 2022, the more vast of the two rules, and the athletics rule proposed in summer 2023. She completely dodged the question, instead responding that she was quite pleased to be introducing today's rule. Well, because I know and have done a thorough reading of the 1500-page rule, there are 31 references to athletics within the actual text of the new rule. In addition, it prohibits gender identity discrimination in any extracurricular activity.

Well, you can imagine sports are an extracurricular activity. So to say that it doesn't include sports is really very duplicitous on the part of the administration. So we can assure all of the individuals who are interested in this issue that sports are going to be included. Now, sexual orientation is also included. you said status of pregnancy, abortion also comes into play. Can you unpack those ramifications for us? The sexual orientation issue may have some salience here because in the end we're looking distinctly at underlying sex as being the divider between providing equal opportunity for men and women. And quite frankly, for years, Title IX has already worked in such a way as to protect biological women, regardless of their sexual orientation or biological men, regardless of their sexual orientation.

But the pregnancy and related conditions is a brand new application. And ultimately, what it's going to do is provide colleges in particular because we're seeing these rates increase as these individuals get into college. We're seeing more reports of unplanned pregnancy. It's going to require universities, colleges, higher education institutions to actually. actually make accommodations for students who want to have abortions. And we've yet to see how this is going to play out in actual practice, but that could include with these recipients of federal funding, a requirement that they provide abortion services free of charge to the student.

That would raise a whole series of other questions, of course. Now, as to all the due process issues that are raised in this, can you unpack it a little bit more for us in terms of how it requires schools to change their structure or approach to handling accusations? And what did it reverse from the Trump administration? So under the Trump administration, we wanted to make very sure, first of all, that sexual harassment was included distinctly as a form of sex discrimination under Title IX. We wanted to make sure that those individuals were protected, those who were experiencing pervasive. And that is a, that's a responsible sort of inclusion here. One, that's a, that's a responsible sort of inclusion here.

one that is directed at a pattern or a practice of conduct of which the school decided they weren't going to get involved and solve. We also made sure that these individuals had as close to a judicial security of due process protections as we might see in, for example, a courtroom. We wanted to make sure that in these procedures, these investigations taking place on college campuses, that they would have things, for example, like the right to be, be represented by counsel or the right to cross-examine a witness or the right to introduce evidence, things that we would see in an ordinary civil proceeding in an actual courtroom. But all of those have been stripped away by this rule, which means that any individual, after a regretful decision one night, could accuse another of being engaged in sexual assault without that individual's opportunity to do anything but sit there, listen, and all.

ultimately make the case for why the other sort of accusing individual is wrong. But because we've gone back to the single investigator model, these are not tribunals, these are not disinterested stakeholders. These are not sort of individuals working together in conjunction to come up with the right answer the way something like a jury would. This is an individual college title 9 administrator. That person gets to determine sort of whether as judge, jury, an executioner, that individual's testimony is true or false. And whether they are accused of sexual assault under Title IX is a mark that will distinctly follow them through the rest of their educational and professional career. It also does not call for, as our previous rule did under the Trump

administration, the involvement of local authorities for simultaneous criminal investigation. If these individuals have something that they've experienced that they believe is tantamount to sexual assault, we want to make sure local authorities are also involved so that a non-judicial and a criminal investigation can be performed simultaneously. That is how we help determine the veracity of what people are saying when they make very damning, accusations. We don't want to weight the scales against any one party, but in fact, if an individual has been sexually assaulted, we want to make sure that they're not only getting collegiate and educational redress, but they're getting legal redress as well.

Final question. You mentioned that the original Title IX rules were established after hundreds of iterations, congressional involvement. Now we've got bureaucrats making a decision, a unilateral decision with massive sweeping implications. What are the hopes for reversing some of this? Who can make the changes? Is it the courts? Is it Congress? I think there's an opportunity for both. What happens next is that this rule has just been probably hand delivered to both the House and the Senate chambers in addition to the governmental accountability office. Now the clock starts running on 60 legislative days. And within those 60 days, both chambers have an opportunity to map. what's called a Congressional Review Act challenge.

And either chamber may, by a two-thirds vote, down vote, or disapprove of the law. That would have the effect of essentially stalling the rule. But it goes to the president's desk. And while the current president is in office and because of his state admissions to, among other things, protect trans communities, it is very likely that he would veto that Congressional Review Act challenge. When that is the case, it would be finalized for publication in the Federal Register and the enforcement date, according to the rule itself, is going to be August 1st of this year conveniently or not so conveniently in terms of application and enforcement for the new

school year in the 2024-2020 season. But the opportunity for public interest litigators or attorneys general to bring suit based on specifically an individual who has standing, who is going to be or has experienced discrimination under this new rule. And many of those, I will say, are individuals who I think are probably going to be impacted by, for example, forced speech codes for misgendering or female athletes who are losing roster spots to biological men, those types of cases. There is an opportunity to bring legal action in the hopes of getting a preliminary injunction. That would have the opportunity and essentially the effect of suspending the law before the school years beginning. And essentially, while it works its way

through the courts, it would be sort of a series of volleys on a litigation basis between both parties against the Department of Justice and the attorneys general or the private individuals who are bringing suit on this. But ultimately, I think the end game is going to be the Supreme Court's disposition. They have eschewed many of these gender identity issues for a long time, and I think they've had to sort of deal with the progeny of the 2020 Bostock v. Clayton County decision related to protections for sexual orientation or gender identity with an employment, but this is distinctly different. And at some point, the Supreme Court is going to have to determine if indeed, as the drafters and the founders and the ratifiers of Title IX, men, in 1972, that sex does mean

biological distinctions between male and female. So you think the courts in the end will settle this, but as you said, even if two-thirds of Congress rejects this new rule change, President Biden can just veto that decision. Absolutely. But I think it's an important characteristic of both legislative chambers to sort of exercise their discretion, to flex their muscle and to recognize as a representative body that this is not in keeping with congressional history or the plain ordinary text of the law itself. And we know that there are certainly people in both chambers who have already indicated to us and others that they are ready to mount a congressional review act challenge. And I would assume that may play into future court rulings too. They might cite the will of Congress as part of the rationale.

Absolutely, and it will be notable in an election year. Those people who are exhibiting the character and steel spine to be able to stand up to what is what I believe a craven political ploy to pander to a hard left progressive base in an election year. Those people who are willing to stand up and vote no are going to be, I believe, very surprised in the election outcomes in the fall. Well, Sarah, thank you so much for coming on and providing your analysis for us. Thanks for having me. Heritage Foundation's senior legal fellow, Sarah Partial Perry, and this has been an extra edition of Morning Wire.