Title IX changes divide lawmakers during subcommittee hearing on gender-based protections

Caption: Chairwoman Rep. Suzanne Bonamici (D-Ore.) addresses the subcommittee in her opening remarks for the virtual hearing.

By Shannon Durazo

WASHINGTON – Democrat and GOP lawmakers took opposing stances on whether recent changes to how colleges should investigate sexual misconduct under Title IX by Education Secretary Betsy Devos were made in the interest of fairness during a virtual congressional subcommittee hearing on September 10.

Republican lawmakers applauded the changes as creating a fairer and more efficient process under Title IX for all parties involved, while Democrats described them as rolling back existing protections in place for survivors during the hearing, entitled “On the Basis of Sex: Examining the Administration’s Attacks on Gender-Based Protections” and hosted by the House Education and Labor Subcommittee on Civil Rights and Human Services. 

Rep. Suzanne Bonamici (D-Ore.) said that the changes to Title IX are too burdensome for survivors and “fails to hold institutions accountable.” The subcommittee chair said in her opening statement this was for reasons such increasing the burden of proof for survivors, forcing survivors to endure live cross-examination, narrowing the definition of Title IX itself and only considering institutions in violation of Title IX if found deliberately indifferent she found to be counterproductive.

In addition, Bonamici said that for the Trump administration to implement these rules in the middle of a pandemic was a “stunning display of callousness.”

Rep. Ben Cline (R-Va.) said in dissent that the changes to Title IX reinstated fairness to the Title IX process and that was stripped by previous policy implemented by the Obama administration in 2011. Ranking member Cline, who was a domestic violence prosecutor before joining congress, said in his opening statement that these policies were both controversial and criticized by some for undermining due process, which the Trump policies fix. 

 “The rule is rooted in our deepest, time-tested legal traditions, and it requires schools to take all allegations of sexual harassment, including sexual assault, seriously and support and protect survivors during every step of the process,” Cline said.

The hearing addressed Title IX changes as well as a broad spectrum of other topics considered by the Democratic members of the subcommittee as attacks on gender-based protections by the Trump administration. These included policy rollbacks of existing workplace and student protections of LGBTQ+ individuals andthe Department of Health and Human Services’ recent attempts to restrict access to healthcare for members of the LGBTQ community.

Democrats on the subcommittee had three witnesses present with expertise in different areas relating to civil liberties and gender and identity-based litigation, while GOP lawmakers only had one witness present, Samantha Harris, who affirmed Republican lawmaker’s support for the changes in Title IX under the Trump administration.

Harris, a senior fellow at the Foundation for Individual Rights in Education (FIRE), a nonprofit interested in protecting free speech rights on college campuses, said that the new regulations under Title IX were “not an attack on gender-based protections” but rather they restored the focus of Title IX to that which qualifies under access to education based on decades of previous judicial provisions. 

“In all of these regards the new regulations are a sorely needed correction for a system that has strayed very far from its original purpose,” said Harris.

Harris said narrowing the focus of Title IX to access to education benefits all universities by streamlining the process from which a complainant files a Title IX complaint as well as consistency with what constitutes sexual harassment through a singular definition.

One of the Democrats’ witnesses, Fatima Goss Graves, rebuked Harris’s claims and said that the new changes to Title IX puts students in school “in a terrible position.” 

Goss Graves, the director of the National Women’s Law Center, a nonprofit focused on issues of gender-based justice, said under the new rule, which the NWLC has challenged in court, a number of inequities pop up when applied to real-life scenarios that could hurt survivors. These include when students can no longer receive justice because their assault occurred at an off-campus party or if a claim is dismissed because the assault is not considered severe enough under the new definition.

Goss Graves also said in the hearing that the creation of a live cross-examination portion points to a uniquely unfair burden of proof against survivors of sexual assault because no other requirements like this exist for other forms of misconduct in schools, including other forms of discrimination and even physical fights between students.

“This is a rule that sends the message that survivors are uniquely unreliable,” said Goss Graves, “and conveys a deep-rooted skepticism in sexual assault itself.”

During the question and answer portion of the hearing members of the subcommittee offered differing perspectives on the scope of Title IX and whether it is ethical for proceedings to exist in its current state. Rep. Virginia Foxx (R-N.C.) said in her question to Harris that she was skeptical of university institutions abilities to properly adjudicate violent crimes like sexual assault at all and that only those in the criminal justice system possess the proper qualifications to handle cases like sexual assault. 

In response to a question from Rep. Susie Lee (D-Nev.) about how changes in policy like Title IX uniquely affect LGBTQ students, Goss Graves said that LGBTQ and transgender students are more likely to be harassed at school and that the change in Title IX and harassment rules, in combination with the lack of acknowledgment of the Supreme Court Bostock v. Clayton County decision by federal agencies can have serious consequences for LGBTQ students.

In his closing remarks, Cline said that “noteworthy individuals across the spectrum,” have embraced Trump’s policies and that the fundamental disagreement on the topic between the two parties is based upon the application and purpose of Title IX, “not if criminals should be punished.”

Bonamici said fundamentally the Trump administration’s recent actions have stripped civil rights protections and halted progress for addressing discrimination based on race, gender sexuality and ethnicity.

“These issues are not merely about policy,” said Bonamici, “But the civil rights protections that are about preserving dignity and securing the inherent and unalienable rights of every American.”

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