New Title IX rules add protections against harassment, assault and LGBTQ+ discrimination

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• William Brangham:

  The Biden administration put out new Title IX rules today that will increase protections for LGBTQ+ students and change how schools handle cases of campus sexual assault.

  These moves reverse several changes made by the Trump administration. Among them, sex discrimination will now clearly include discrimination based on sexual orientation and gender identity. They fundamentally change the way schools conduct assault investigations, removing the Trump era requirement that victims be cross-examined and that they hold in-person hearings.

  The new rules sidestep the controversial issue of transgender athletes, saying that that was still under review.

  For more on these changes, I am joined by The Washington Post's Laura Meckler, who has been following all of this closely.

  Laura, thank you so much for being here. So these rules go into effect starting in August. On this issue of LGBTQ+ students, it now says that it is illegal, very specifically, to discriminate against those students. That was not the case before?

• Laura Meckler, The Washington Post:

  Well, actually, the Biden administration has long held that it was the case before. They say that Title IX, which bars discrimination the basis of sex, has always also included sexual orientation and gender identity as part of that. That is a way, essentially, to discriminate on the basis of sex.

  So that's how they have been acting, and that's how they have been adjudicating cases. But what this regulation does is essentially gives that more heft by putting it into a formal regulation that has gone through the full rulemaking process that says this is the official federal government's interpretation of what Title IX says.

• William Brangham:

  And so on this issue of changing the rules with regards to how investigations are handled about sexual assault, explain to me what the situation was and now what these new rules do.

• Laura Meckler:

  So, the question of sexual assault and sexual harassment on campus has been a huge one for many years now. Well over a decade has this been a hot topic?

  And, in fact, the Obama administration tried to address this with its own set of guidelines. And then the Trump administration came, tossed out the Obama rules, and wrote their own regulations. And they set out a system that was sort of a court-like type procedure, where there would be a separate investigator who would be different from the person who made the judgment.

  And you would have sort of a cross-examination opportunity and a hearing. And it was a very high, higher burden of proof for what exactly would be considered sexual discrimination or sexual harassment under the law. So they had this system that was different in a couple ways. It was both sort of a more formal court-like system, and it was also a higher bar for proving your case.

  And so now what this Biden administration rule does is essentially revises that system with one of its own and makes tweaks in both of those, sort of gives schools more flexibility. They don't have to use these hearings. They don't have to have cross-examination if they don't want to, as a good example.

  And it also has a broader definition of what sexual harassment actually is under the law. So it would be easier to prove your case.

• William Brangham:

  Help me understand what the Biden administration is trying to solve there. What was the concern with the previous regime?

• Laura Meckler:

  Well, there were a number of concerns.

  From the point of view of sexual assault survivors, they were concerned that if you mandate a cross-examination-type situation, that it would be essentially re-traumatizing for them. Of course, people on the other side would say that this is how you get at the truth. But that's what they said.

  The other issue is that colleges themselves did not like being put into the position where they were essentially becoming a de facto court. They said, that's not what we do. That's not our job. We don't feel comfortable with it. So that was another problem.

  And then, in terms of the burden of proof and how difficult it is to prove your case, that's really about sort of where do you want those sort of scales of justice to hang. Are you going to make it a little bit easier for people who are alleging these incidents happen, these cases of harassment, or do you want to make it a little bit harder to prove your case?

  And the Biden rules come down on making it a little bit easier to prove your case.

• William Brangham:

  There has been, as you know, a good deal of pushback on this. Congresswoman Virginia Foxx, who heads the House Education Committee, conservative, has said that some of these rules are basically redefining sex and gender in America.

  What is the argument that they're making there?

• Laura Meckler:

  Well, this is an argument that conservatives are making all over the country, and in fact, legislating based on that.

  They essentially do not accept the idea that you can change your gender, that you can be born a boy and then decide you're a girl, is how they would put it. Of course, other people would say that, no, there are people who internally really feel like they are in fact the other gender, and that acknowledging that and accommodating that is the right thing to do.

  But from a conservative point of view — and this is — there's, like I said, legislation dealing with this all over the place in conservative states — what they're really trying to say is that, this is a threat to essentially other girls and women. They don't want somebody who was born a boy showing up in the girls locker room, for instance.

  So they take great issue — and I got a lot of response today from conservatives saying essentially that the administration was going too far and taking what they view as a radical position gender.

• William Brangham:

  Lastly, as I mentioned, this does not address this very controversial issue of transgender athletes. Why did the administration say that they pushed off that decision?

• Laura Meckler:

  Well, what they officially say is that that regulation, a separate regulation that addresses sports, is not ready yet.

  But what people tell me who are familiar with the administration's thinking is that really it's the politics and that they don't want to be talking about this question of trans women competing on girls and women's sports teams in the middle of an election year.

• William Brangham:

  All right, Laura Meckler of The Washington Post, thank you so much for being here.

• Laura Meckler:

  Thank you so much for having me.