Human Rights Campaign Praises Important Proposed Changes That Would Restore Title IX Provisions Combatting Sexual Assault & Harassment, Reinforce Inclusion of Sexual Orientation, Gender Identity

by Delphine Luneau

Once in Effect, Rule Would Reverse Trump-Era Changes That Limited Federally Funded Educational Institutions’ Obligations to Address Sexual Harassment & Assault

WASHINGTON — The Human Rights Campaign (HRC) — the nation’s largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — praised the announcement today that the U.S. Department of Education has issued a Notice of Proposed Rulemaking (NPRM) that will restore Title IX protections that were stripped away during the Trump administration and further reinforce protections for LGBTQ+ people. HRC also calls on the Department to clarify and strengthen provisions related to gender identity, and swiftly issue the promised additional NPRM on athletics provisions to clarify inclusion of transgender youth – particularly vital provisions for transgender students who face state-level bans on playing sports on teams that match their gender identity.

The proposed rule would reverse May 2020 changes to Title IX that limited federally funded educational institutions’ obligation to address sexual harassment and assault. The updated rule would also reinforce protections on the basis of sexual orientation and gender identity. Even prior to final rules on implementation of Title IX, the law provides protections to LGBTQ+ students in federally funded educational programs. Numerous federal courts have found that discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity, including in Title IX. This includes decisions from federal courts that it is a violation of Title IX to exclude transgender students from restrooms, locker rooms, and sex-separated programs and activities, including athletics, consistent with their gender identity. The proposed rule and soon to be proposed rule must be finalized swiftly and must realign the Department of Education with the case law.

“The proposed rule change gets at the heart of what Title IX is supposed to do – protect students from sexual assault, sexual harassment and discrimination while on campus,” said Sarah Warbelow, HRC Legal Director. “These protections are particularly critical for female and LGBTQ+ students. A strong Title IX regulation, with clear expectations for how educational institutions are expected to behave, is an absolutely essential component of ensuring that our schools are places to learn and that all students can be safe in educational settings. By spelling out protections based on sexual orientation and gender identity, it will further safeguard a vulnerable population that is all too often preyed upon. The proposed rule is a good first step, and we look forward to seeing an additional strong proposed rule on athletics and final rules that fully encompass needed protections relating to gender identity. It is especially important, given the attacks on transgender youth across the country.”

Under the Trump administration, the Department of Education instituted a series of controversial and discriminatory regulatory and guidance changes to the implementation of Title IX – the federal civil rights law that protects students from discrimination in federally-funded educational activities and programs – dismantling long-standing protections and opening the door to sex-based discrimination against LGBTQ+ students.

  • In 2017, the Departments of Education and Justice rescinded guidance to schools about their obligations to transgender students.
  • As part of the regulatory changes, requirements that federally-funded schools report sexual assault were relaxed and dismantled – creating more hurdles for survivors of sexual assault to seek justice, while giving more rights to alleged perpetrators of sexual violence.
  • The changes further threatened LGBTQ+ students and women, who face disproportionately high rates of sex-based discrimination and stigma that can make it more difficult for LGBTQ survivors to report sexual assault and harassment.
    • Studies suggest that nearly half of bisexual women have been raped and half of transgender people will experience sexual violence at some point in their lifetimes. According to the Youth Risk Behavior Survey, a national survey of high school students, lesbian and bisexual women and gay and bisexual men experienced higher rates of sexual assault than their straight counterparts. In addition, a 2015 study by the Association of American Universities found that 60 percent of gay and lesbian students and nearly 70 percent of bisexual students report being sexually harassed on campus.

In March 2021, President Biden issued Executive Order 14021 to begin the process of undoing the Trump administration’s harmful actions undermining Title IX and protections for LGBTQ+ students. The executive order directed the federal government to ensure federally funded facilities and educational environments are free from sexual harassment, sexual violence, and discrimination on the basis of sex, sexual orientation, and gender identity.

HRC will be asking our members and supporters to submit comments on the NPRM and the anticipated NPRM, including highlighting ways to strengthen the regulation.

The Human Rights Campaign is America’s largest civil rights organization working to achieve equality for lesbian, gay, bisexual, transgender and queer people. HRC envisions a world where LGBTQ+ people are embraced as full members of society at home, at work and in every community.

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