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

Caption: Chairwoman Rep. Suzanne Bonamici (D-Ore.) addresses the subcommittee during her opening remarks in 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 in the interest of fairness. 

During the virtual subcommittee hearing on September 10, Republican lawmakers applauded the Title IX changes as creating a more efficient quasi-judicial process for colleges to utilize, while Democrats criticized the measure for rolling back already slim protections for survivors. The hearing was titled “On the Basis of Sex: Examining the Administration’s Attacks on Gender-Based Protections” and was 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 the changes that unnecessarily burdened survivors included the increased standard of proof, new live cross-examination, narrower definition of sexual harassment and more a laxer approach to holding institutions accountable if found in violation.

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

Rep. Ben Cline (R-Va.) disagreed in his opening statement, saying that the changes to Title IX reinstated fairness to the process, which was stripped by previous Obama administration policy in 2011. Ranking member Cline, who previously was a domestic violence prosecutor, said in his opening statement that the Obama administration policies used broad, vague definitions of sexual harassment under Title IX and undermined due process in Title IX hearings, issues he said were resolved with the Trump administration’s changes. 

 “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.

Title IX was not the only topic addressed in the hearing. Lawmakers also discussed a broad spectrum of other topics considered by the Democratic subcommittee members 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 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 used.

Goss Graves also said in the hearing that the creation of a live cross-examination portion points to a uniquely unfair burden of proof for survivors of sexual assault because no other cross-examination requirements exist for other forms of misconduct in schools, including racial 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. 

Goss Graves said in response to a question from Rep. Susie Lee (D-Nev.) about how changes in policy like Title IX uniquely affect LGBTQ students that LGBTQ and transgender students are more likely to be harassed at school. She said with that the changes 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 solely upon the application and purpose of Title IX and “not if criminals should be punished.”

Bonamici said in her closing remarks that the Trump administration’s actions have been damaging to all individuals potentially affected by discrimination, whether it be gender-based or other forms.

“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,” said Bonamici. 

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

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