Biden Advances Assault on Women’s Sports and Due Process

The Biden administration’s effort to rewrite Title IX – a move which would destroy decades-old legal protections for women’s sports and undermine due process in sexual assault cases – moved one step closer to completion when the Education Department sent the final text of its new rule to the White House on February 2.

Title IX refers to a landmark 1972 civil rights law which prohibits sex-based discrimination at any school which receives federal funding. Notably, Title IX led to the creation of scholarship women’s athletic programs at hundreds of schools and expanded other opportunities for women in academia.

In June 2022, Secretary of Education Miguel Cardona announced sweeping changes to Title IX regulations which lower the bar for what is considered “sexual harassment” and introduce language requiring schools to allow males who identify as women to participate in women’s sports – stealing opportunities and scholarships from women in the process.

Specifically, the new rule proposed by the Biden Department of Education would remove the requirement for cross-examination in sexual harassment and sexual assault cases and lower the bar for someone to be found guilty from “clear and convincing” evidence of guilt to merely “a preponderance of the evidence.” Moreover, the new rule removes requirements that schools hold live hearings for harassment and assault cases.

In other words, the fate of a student accused of sexual harassment or sexual assault would be determined entirely according to the opinion of one administrator who plays judge, jury, and executioner – all without even a formal hearing to allow the accused to plead his case.

Schools would also be required under the new rule to “respond to a hostile environment based on sex” even if said conduct occurs off school property. This provision allows schools to police their students’ conduct anywhere – including in their own homes. As the National Review Editorial Board has warned, it could even mean “that parents who refuse to green-light their child’s gender transition could be investigated for discrimination as well as kept in the dark about their child’s transgender status at school.”

Even more egregiously, the Biden administration rule would change the Supreme Court’s narrow definition of discriminatory sex-based harassment in the original Title IX statute to include all “unwelcome sex-based content” and “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.”

This intentionally broad definition includes refusing to use a student’s “preferred pronouns.” This means that, under the new rule, students could be expelled for “misgendering” another student or faculty member.

By redefining sex to include gender identity, the Biden administration’s Title IX rewrite will also coerce all schools which accept federal funding to allow biological males to compete on women’s sports teams. To make this even more clear, Cardona released another rule in April 2023 which states that schools “would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.”

As retired Stanford professor David Hanson explained, when it was introduced 50 years ago Title IX assured parity for women’s sports by granting them the same budgets, infrastructure, and institutional support as men’s sports. “How ironic, then,” he said, “that a half-century of athletic transformation has been completely undermined by the current ritual takeover of [women’s sports] by biological men.”

Many educators believe that the new Title IX rule will become an instrument of intimidation, a weapon for the Biden administration to impose its far-left social agenda on schools – much as Biden did by threatening to withhold federal money for school lunches unless schools acceded to the administration’s transgender bathroom policy.

Even schools that are free from the shackles of federal funding are now being targeted by the left in attempts to force them in line.

One of the most notable is Hillsdale College, a private Christian school which accepts zero federal funding and has become a top target of the left for its commitment to objectivity rather than advancing a blatantly left-wing worldview.

Hillsdale is now facing a lawsuit claiming that there is an “unusually high risk of sexual assault” at the school because it does not comply with Title IX. The lawsuit further alleges that the school’s rejection of federal funds is “a misguided and ineffective attempt to avoid its obligations under Title IX.”

While claims of sexual harassment are certainly serious and worthy of a fair hearing, the evidence advanced in the case is thin at best, and the lawsuit appears to be more an attempt to punish Hillsdale for refusing to accept federal funding and in doing so submit itself to the ideological agenda of bureaucrats at the Department of Education.

Hillsdale College President Larry Arnn has stated that these attempts to force Hillsdale under federal authority would “convert [the college] from the pursuit of goals to the pursuit of compliance with rules.”

Despite the apparent spuriousness of the lawsuit, however, the case is still pending, and could go against Hillsdale – a ruling that would have disastrous implications for every school throughout the country which seeks to preserve its independence from federal authority.

Margaret Beecher, the president of Napa Legal Institute, which filed an amicus brief on behalf of Hillsdale, explained that the essence of the case is about religious freedom. “Is the government in charge? Or are religious institutions free to govern themselves in accordance with their beliefs?” she asked.

This battle is also taking place amid the backdrop of a precipitous decline in public confidence in academia. In a Gallup poll from last July, 62 percent of Americans said they had only “some” or “very little” trust in the higher education system.

The Biden administration’s new rule, which could be finalized in a matter of weeks, is unlikely to reverse this trend.

Ben Solis is the pen name of an international affairs journalist, historian, and researcher.