Tangle - Biden's new Title IX rules.

Starting point is 00:00:00 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

Starting point is 00:01:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place we get views from across the political spectrum, some independent thinking, and a little bit of mind take. I'm your host, Isaac Saul, and today we're going to be talking about Title IX and some of the changes that the Biden administration just pushed through. We're going to reflect on what they might do and, as always, share some opinions from the left and the right about how this is going to play out and whether these are good changes or not.

Starting point is 00:01:45 I appreciate everybody's feedback who wrote in yesterday about our little experiment with John and I splitting up the podcast together. The feedback seemed really positive. So I think it's going to be something we do going forward. We're not doing it today. It's just me on the mic today, but I think you can expect a little bit more of that. If you have any thoughts or feelings, don't forget, you can always write into us, Isaac, I-S-A-A-C, at readtangle.com, and John, J-O-N, at readtangle.com. That out of the way, we'll jump in with some quick hits. First up, House Democratic leadership said they will vote to table any motion to remove House Speaker Mike Johnson, the Republican from Louisiana, that's brought by Representative

Starting point is 00:02:31 Marjorie Taylor Greene, who has said she will trigger a vote to remove Johnson next week. Number two, the U.S. Drug Enforcement Agency, or the DEA, announced plans to reclassify marijuana as a less dangerous drug. Number three, riot police at both UCLA and Columbia University clash with student protesters who continue to occupy encampments in university buildings in protest of the war in Gaza. Number four, eight regional newspapers sued OpenAI and Microsoft for copyright infringement yesterday, continuing the battle between news outlets and generative artificial intelligence companies. And number five, amid ceasefire negotiations, Israeli Prime Minister Benjamin Netanyahu vowed to invade Rafah, the town in Gaza's south,

Starting point is 00:03:14 with or without a hostage deal. the biden administration is facing a flurry of lawsuits to block its changes to title nine from taking place title nine is a federal civil rights law created in the 70s to prevent sex-based discrimination in federally funded schools now the biden administration h beginning august 1st, Tit cover discrimination based and gender identity. The aspect of that change is transgender men to compie

Starting point is 00:03:59 Montana is among four sta a new biden administratio title nine protections ag is among four states suing to overturn a new Biden administration rule extending Title IX protections against all sex discrimination. According to a statement from the Department of Education, the final rule extends Title IX protections against discrimination based on sexual orientation, gender identity, and pregnancy. It requires schools at all levels to promptly address all complaints involving sex-based discrimination and protects students, family, and faculty from retaliation. Earlier this month, the Biden administration released new Title IX rules designed to protect LGBTQ students and reversed a number of Trump-era

Starting point is 00:04:37 policies related to how schools can respond to allegations of sexual assault on college campuses or in K-12 schools. A quick reminder, Title IX is the 1972 law that prohibits discrimination on the basis of sex in educational programs that receive federal funding. Title IX states that 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. One of the law's lasting impacts has been improved funding and promotion of women's sports at the collegiate and high school levels.

Starting point is 00:05:15 The Biden administration released these new rules that go into effect on August 1st to broaden the scope of Title IX. The new rules extend the law to prohibit discrimination based on sexual orientation or gender identity and expand the range of sexual harassment complaints that schools are responsible for investigating. Under the new rules, a transgender student subjected to a hostile environment through bullying or harassment, including being repeatedly referred to by a name or pronoun other than the one they have chosen or excluded from programs or facilities based on gender identity can trigger an investigation by the Department of Education's Office for Civil Rights. The administration cited Bostock v. Clayton County as justification,

Starting point is 00:05:55 a landmark 2020 Supreme Court case in which the court ruled that the Civil Rights Act protects gay and transgender workers from workplace discrimination. However, the administration avoided the issue of whether transgender students should be able to play sports in divisions corresponding to gender identity. Instead, the Education Department is pursuing a different rule to deal with sex-related eligibility for male and female sports teams. The new rules also modified the way schools handle allegations of sexual harassment and assault. The Trump administration codified provisions under Title IX that bolster due process rights for accused students while reducing the legal liability of schools. Those rules also laid out parameters for how schools should conduct

Starting point is 00:06:34 impartial investigations. The Biden administration attempted to strike a middle ground between the Trump-era policies and Obama-era policies, which called on schools to ramp up investigation into sexual assault complaints or face federal funding cuts. These policies had long been criticized for being unenforceable, however, as students affected by them were successfully able to sue colleges for violating their due process rights. Now, the newest rules provide the flexibility for schools to conduct investigations while also broadening the kinds of actions that can be investigated, including those that didn't occur on campus. More than a dozen states are challenging the changes to Title IX, arguing that they overstep the president's authority and undermine Title IX's

Starting point is 00:07:14 own anti-discrimination laws restricting bathroom and locker room access. Today, we're going to explore some arguments about the latest changes from the left and the right, and then my take. We'll be right back after this quick commercial break. First up, we'll start with what the left is saying. The left generally supports the new rules, with many praising the provisions for creating new protections for trans students. Some argue they don't go far enough to protect victims of sexual assault. Others say conservatives' reactions to the law is overblown. The Bay Area Reporter editorial board suggested the updated policy will help trans students. Key to the new rule is the Biden administration's view that sex

Starting point is 00:08:05 discrimination includes discrimination based on gender identity as well as sexual orientation. This, of course, is opposed by conservatives, many of whom have continued pushing to ban LGBTQ-themed books from schools and forcing students to use facilities based on their sex assigned at birth rather than their current identity, the board wrote. It is in this context that the new final rule will help LGBTQ students. The provisions make clear that Title IX covers harassment and discrimination based on sexual orientation, gender identity, and sex stereotypes, restores the long-standing severe or pervasive standard for sex-based discrimination, and requires schools to investigate instances of student-on-student harassment or assaults that occur off-campus where they affect students' access to education.

Starting point is 00:08:50 This last one is important because there are lots of reports of such off-campus incidents, whether online or in person, the board said. The new rules should be welcomed by students and educators alike. In the nation, Ray Epstein said the new rules leave sexual assault survivors in the lurch. The new Biden rules have modified the protocol's governing assault testimony in line with trauma informed models of cross-examination, yet they remain woefully silent on the growing legal backlash against victims of sexual assault who testify, Epstein wrote. The U.S. legal system has always assumed that cross-examination of a witness is the most effective tool for revealing false accusations, but scientific research shows that this is simply not true in situations where the witness has suffered a trauma. Friday's revised Title IX

Starting point is 00:09:34 regulations, at least in part, attempt to address this nuance. However, a closer look reveals that the regulations suffer from a damaging omission. They do nothing to counter the growing threat of defamation actions against Title IX complainants who give evidence under this modified form of cross-examination, Epstein said. The short-term impact of the new Biden rules will deliver much-needed support to sexual assault victims who are vulnerable to re-traumatization as they give evidence for their claims. But without the added assurance that their testimony is immune from retaliatory defamation actions, the longer-term effects of the new policy could prove catastrophic. In Chalkbeat, Erica Meltzer and Kaylin Belsha criticized Republican states' challenge of the

Starting point is 00:10:15 new laws. For LGBTQ youth whose rights have been under attack by Republican state officials, new federal regulations protecting them from discrimination at school were a welcome sign that someone in power had their back, Meltzer and Belsher wrote. The lawsuits highlight an ongoing culture war centered on the rights of trans students at school. Republican states have passed a host of laws limiting trans youth's participation in sports, which bathrooms these students can use, and which names they can go by. The bulk of the concerns in the lawsuits focus on trans girls being permitted to use girls' bathrooms and locker rooms, and that school staff will be

Starting point is 00:10:49 compelled to call trans and non-binary students by their preferred names and pronouns. But the Title IX rules make clear that schools can still maintain single-gender restrooms, Meltzer and Belshaw said. Practically, the new rules matter because they give students, families, and advocates sturdier ground to stand on when they file a federal civil rights complaint or a lawsuit seeking to challenge a school's policy. All right, that is it for what the left is saying, which brings us to what the right is saying. The right opposes the new rules, framing them as backward policies that will harm students,

Starting point is 00:11:29 particularly women. Some say Biden is bending the law to advance his political agenda. Others worry that the rules will stifle free speech across the country. In City Journal, Ilya Shapiro said the new guidelines are bad for women, free speech, and due process. The rule is based in part on the Supreme Court's 2020 ruling in Bostock v. Clayton County, which said that protections against sex-based discrimination and employment apply to gender identity and sexual orientation, Shapiro wrote. That legal argument is highly questionable. First, the Bostock majority stated that we do not purport to address bathrooms, locker rooms, or anything else of the kind. Second, gender identity is nowhere defined in the new rule,

Starting point is 00:12:09 but the conflation of sex and gender contradicts Title IX's understanding of sex as biological and binary, regardless of whether your preferred theory of statutory interpretation elevates text or purpose, or even legislative history. Even as the new rule explicitly disclaims any impact on athletic teams, jurisdictions are still empowered to allow biological males to play in women's and girls' sports or to use their intimate facilities without violating Title IX. Title IX thus no longer protects female-only sports and spaces, Shapiro added. The rule aims to inculcate radical change in American society, replacing women's equality with far-left gender theory. It's bad law, bad policy, and a continuation of a broader shift

Starting point is 00:12:49 from education to activism, with the empowerment of political commissaires and bureaucrats over parents and educators. In Newsweek, Theresa Manning argued that Biden is weaponizing Title IX to promote fringe sexual politics. Former Secretary of Education Betsy DeVos spent three years developing and promulgating a new Title IX rule that protects both complainants and due process. That rule was upheld as fair and lawful by every court to review it, Manning wrote. Tragically, Biden's regulation will undo these gains. It allows schools to investigate sexual harassment claims with an individual meeting method similar to the single investigator model used under the DCL, which resulted in all the due process disasters and lawsuits. In effect, Biden is eliminating formality, including live

Starting point is 00:13:35 hearings at colleges, while increasing the discretion and power of Title IX staff. The redefinition of sex to include gender identity means that males claiming to be female and wanting to use women's locker rooms or play on women's sports teams can now claim that Title IX gives them that right. Ironically, women's athletics only exist in their present form, especially at the college level, because Title IX was interpreted decades ago to mandate not just equal athletic opportunity, but equal funding for female sports programs, Manning said. The Biden rule represents the administrative state run amok. Activist agencies get an inch, then take a mile to make a novel policy. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot.

Starting point is 00:14:29 Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime,

Starting point is 00:15:00 Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. In the American conservative, Sharice Trump wrote Biden's new Title IX rule as the beginning of the end for free speech. Despite the fact that expressing and debating views and ideas is fundamental to the American system, many universities prefer to shut down speech, punish students for merely asking questions or stating basic facts, and enforce a dogmatic approach towards all political speech. At the

Starting point is 00:15:34 same time, they embed their preferred political speech in all aspects of student life, Trump said. Similarly, the Biden administration does not want to wait for the end result of the traditional American way, debate and discourse that seeks truth through reason and ultimately settles on a conclusion based on core constitutional principles. Under the new rules, the speech only has to limit a person's ability to benefit from, unlike the previous rules effectively denies a person's equal access, phrasing, this means anyone can file a Title IX claim, even when they have equal access to education, Trump said. Other countries like Canada already have similar laws regarding the use of pronouns. Biden's Title IX rule is the first step in that direction, the beginning of the

Starting point is 00:16:16 end of free speech in America. All right, that is it for what the left and the right are saying, which brings us to my take. So as many of the commentators above noted, there are basically two key elements here. First is the rule changes that are aimed to address LGBTQ discrimination, and then the rule change is meant to address how sexual assault reports are handled on campus. I'm going to address them in that order. On LGBTQ discrimination, first, it should be noted that a large chunk of the rule updates seem genuinely good and just non-controversial. If you actually read the Education Department's five-page fact sheet, you'll see requirements to quote, respond promptly and effectively to all complaints of sex discrimination with a fair, transparent, and reliable process that includes trained, unbiased decision makers to evaluate all relevant and not otherwise impermissible evidence. That's not exactly as headline-grabbing

Starting point is 00:17:20 as the beginning of the end of free speech. Most of this stuff is just an added layer of protection for students who want to report discrimination or harassment. Of course, in this moment of rabid culture war, the focus is on the rules expanding Title IX to govern gender identity. Effectively, these rules open the door to civil litigation if a school prevents someone from participating in sex-separate activities consistent with their gender identity. This is by far the most controversial part of the rule changes, as it redefines Title IX's understanding of sex from something biological and binary, as Ilya Shapiro put it under what the right is saying, into something individually defined. I think the Biden administration is genuinely attempting to provide legal recourse to students who are being discriminated against

Starting point is 00:18:03 or bullied because of their gender identity. But the updates are messy. For instance, it's true the rule changes don't give any blanket instruction on how schools must handle thorny issues like transgender students participating in athletics, which I think is good. As I've argued before, those rules should be made by the governing bodies of individual sports. But it does open the door for trans students to sue schools if they believe they are being excluded from spaces that they feel they should be able to access based on gender identity alone. The legal argument the Biden administration used to buttress these changes is Bostock v. Clayton County, the Supreme Court ruling that barred sex-based discrimination in employment and applied that discrimination to

Starting point is 00:18:44 sexual orientation and gender identity. Yet the majority in that ruling explicitly noted its ruling did not apply to issues of sex-separate spaces like bathrooms or locker rooms. And most crucially, the Biden administration did not define gender identity anywhere in its rule, leaving the most important element of all of this open for interpretation and legal challenges. Those legal challenges are piling up quickly, and I suspect at least a few of them are going to stick. If any make it to the Supreme Court, I'm doubtful these justices are going to let such vague redefinitions of Title IX stand. So that's basically my position on the LGBTQ discrimination element. On the sexual assault reporting, the updates on how colleges should address allegations of sexual harassment or assault seem like an attempt to

Starting point is 00:19:30 find a middle ground between Obama-era and Trump-era rules, but on the whole, they strike me as a dangerous reversion to what we had a decade ago. On the one hand, the administration is giving some power back to schools and states to decide how to approach these issues, and what I've read from educators seems to indicate that allowing some flexibility is good. All schools have different resources and should be able to have some wiggle room in how they investigate, adjudicate, and punish amid harassment or assault allegations. All states have different laws about navigating these allegations that schools have to follow. But that doesn't mean some sort of baseline standards are inappropriate. And the ones that Betsy DeVos and the Trump administration put in place

Starting point is 00:20:08 seem stronger than these. By far, my biggest concern is the removal of due process standards that protected against the single investigator model for adjudicating sexual assault claims. This model is incredibly controversial among due process advocates, and for good reason. It allows one person, often a Title IX or DEI coordinator, to hear, investigate, and then rule on claims of sexual harassment without any oversight. There is no world where a single person should be the judge, prosecutor, and jury with the power to expel a student or label them as a sex criminal for life. Yet these changes reopen the door for that possibility on campuses across the country. I don't want to be misinterpreted here. The data we have suggests

Starting point is 00:20:50 sexual harassment or assault is rampant in colleges and goes underreported. Addressing that and protecting the women and girls who are most often the victims of that harassment or assault should be an education department priority. But we can't sacrifice the fundamental rights of the accused while we do. There is a reason so many accused students have won lawsuits for having their due process rights violated, and it's that the system we had was deeply flawed. Lastly, one thing stuck out to me while researching this piece. There were far more columnists on the right writing about this than columnists on the left. And I think I see why. Despite the delays, public commenting period, and resources the Biden administration put into developing the changes,

Starting point is 00:21:31 on net, they seem problematic, ill-conceived, and likely to be struck down amid legal challenges. With any luck, that will force the Biden administration to course-correct and improve the rules. But instead, this all seems more likely to lead to heightened legal ambiguity and culture war division. We'll be right back after this quick break. All right, that is it for my take, which brings us to your questions answered. This one is from somebody going by Hanvan from Vallejo, California. They wrote, I've not seen this address anywhere yet, but it seems important. Just what did Hamas intend to accomplish with their initial attack that started this war? Why that day? Why that place? What

Starting point is 00:22:21 specific goal did they expect to attain? All that followed has been extensively analyzed, but not the initial reason for it. Do you know? All right, so first of all, as Tangle listeners already know, we've covered the conflict in Gaza extensively and in many different ways, but most of our analysis has related to Israeli citizens, Gaza citizens, the Israeli government, or even the U.S. government. We haven't gotten into very much detail on the motivations of Hamas, which are difficult to discuss with nuance, but I appreciate this direct question and I'm going to do my best to answer them narrowly. So, what did Hamas intend to accomplish? They wanted to inflict maximum pain on Israel, or put differently, to kill and kidnap as many Israelis as they could. Hamas has, since its

Starting point is 00:23:05 inception, had its goal as the destruction of the Israeli state, which they see as existing on land entirely and rightfully theirs. Hamas has said that the October 7th attack was a reaction to Israel's purported plans to eliminate Palestine and was a strategic move to alleviate the blockade in the Gaza Strip and establish a Palestinian state with Jerusalem as its capital. Some experts have also speculated Hamas wanted to disrupt the normalization of relations between Israel and Arab states, which had been expanding. Why that day? Well, tensions between Israelis and Palestinians were on the rise before October 7th, with West Bank settlement expansion and violence at the site of the Al-Aqsa Mosque as a major source of tension. In March of 2023, during the Jewish holy period of Passover and the

Starting point is 00:23:50 Muslim holy period of Ramadan, violent disputes broke out between Jews and Muslims at the Al-Aqsa Mosque, a holy site in Islam, as well as the location of the Temple Mount, a holy site in Judaism. Hamas called its October 7th attack the Al-Aqsa flood as a response to those killed or injured at the Al-Aqsa mosque. Leading up to October, Hamas began gathering resources and performing military drills in Gaza in preparation of an attack. So why that place? Well, that's a little bit more straightforward. Hamas attacked Israel's settlements that were close to the Gazan border because they were easily accessible and poorly secured. As for what their goals were, well, for Hamas, the attack was a step towards the destruction of Israel. Again, that's hard to discuss with nuance, but I encourage you

Starting point is 00:24:35 to read a report from the Center for Strategic and International Studies, which we've linked to in today's newsletter, if you want more insight into Hamas's goals. I excerpted its abstract below, quote, When Hamas took over the Gaza Strip by force of arms in 2007, it faced an ideological crisis. It could focus on governing Gaza and addressing the needs of the Palestinian people, or it could use the Gaza Strip as a springboard from which to attack Israel. Even then, Hamas understood these two goals were mutually exclusive. And while some anticipated Hamas would moderate or at least be co-opted by the demands of governing, it did not. Instead, Hamas invested in efforts to radicalize society and build the militant infrastructure

Starting point is 00:25:15 necessary to someday launch the kind of attack that, in its view, could contribute to the destruction of Israel. End quote. All right, that is it for today's listener question. As always, if you want to submit a question, you can do that by writing in to me, Isaac, I-S-A-A-C, at readtangle.com. All right, next up is our under the radar section. Florida's six-week abortion ban will go into effect today, one month after the state Supreme Court ruled in favor of the measure. News of the court's ruling became a national controversy, but today the ruling's impact will actually be felt, with abortion clinics across the state beginning to reject certain patients. The ban includes exceptions for rape, incest,

Starting point is 00:25:59 medical emergencies, and some fetal anomalies, though patients have to present police reports, medical records, or court orders to claim the exception. A statewide ballot measure to provide a constitutional right to abortion will be voted on in November. The Hill has the story, and there's a link to it in today's episode description. All right, that is it for our Under the Radar section, which brings us to our numbers section. The number of girls who participated in high school sports in the 1971-1972 school year was 294,015, according to the National Federation of State High School Associations. The number of girls who participated in high school sports in the 1972-1973 school year, the first academic year after Title IX went into

Starting point is 00:26:46 effect, was 817,073. The number of girls who participated in high school sports in the 2007-2008 school year was 3,057,266. According to the NCAA, the percentage of participants in its championship sports in 1982 who were women was 30.5%. That percentage in 2016 was 43.5%. The female-to-male enrollment ratio at NCAA Division I schools in 2016 was 1.13 to 1. The female-to-male athletic participation ratio at NCAA Division I schools in 2016 was 0.88 to 1. And finally, the percentage of Americans who say transgender athletes should only be allowed to compete on sports teams that conform with their birth gender, according to a May 2023 Gallup poll, was 69 percent. All right, that is it for our numbers section. Last but not least, we have our have a nice day story. Kadir Toya was driving along Interstate 94 in St. Paul, Minnesota,

Starting point is 00:27:52 when he saw an SUV next to the guardrail engulfed in flames with a passenger stuck inside. I decided to park the car and get out and try to help, said Toya. About 10 other people also left their vehicles to help rescue the passenger who was stuck inside. Incredibly, the daring rescue was captured by dash cam footage. The Washington Post has the story on their Instagram and there's a link to it in today's episode description. All right, everybody, that is it for today's podcast.

Starting point is 00:28:19 As always, if you want to support our work, you can go to readtangle.com forward slash membership, or you can just spread the word about this podcast or give us a five-star rating, whatever is easiest for you. We'll be right back here same time tomorrow. Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited and engineered by John Law.

Starting point is 00:28:45 The script is edited by our managing editor, Ari Weitzman, Will Kedak, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager. Music for the podcast was produced by Diet75. And if you're looking for more from Tangle, please go to readtangle.com and check out our website. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.

Starting point is 00:29:43 The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported Your Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

Tangle - Biden's new Title IX rules.

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