'We will never forgive you': Biden rules on gender identity, due process prompt legal threats

Trump's education secretary calls the new regs a return to "bad old days where sexual misconduct was sent to campus kangaroo courts."
Joe Biden with Ashton Carter's wife Stephanie at swearing-in

An ordinary person reading the Department of Education's announcement Friday of its long-delayed new Title IX regulation against sex discrimination in education would likely be hard-pressed to tell what all the fuss is about. 

Legal scholars and parental rights, gender-critical and due-process groups, who have protested the Biden administration's proposed conflation of sex and gender identity and erasure of Trump administration protections for students accused of sexual misconduct over the past two years, are explaining the fuss.

The feds dropped the 1,577-page unofficial regulation before dawn Friday along with a five-page fact sheet and 15-page summary of the new rules, whose drafting prompted a quarter-million public comments. (It does not become official until it's published in the Federal Register.)

Critics insist the regulation will affect sex-segregated sports despite the department's reiteration that it has a separate athletics rule, which Manhattan Institute Director of constitutional studies Ilya Shapiro called "literally impossible" to follow in a public comment last year.

"There’s a reason this new rule was delayed again and again: the Biden administration knew that it was stretching the law beyond its breaking point," Shapiro wrote Friday on X, formerly Twitter.

He predicted "bloated educational bureaucracies will waste no time in investigating and disciplining students and faculty for politically incorrect speech that now runs afoul of expansive, nebulous, and shape-shifting definitions of sex-based harassment."

The feds' press release Friday mentions gender identity only once, saying the regulation protects against such discrimination, without explaining its potential to grant males presumptive access to restrooms, locker rooms and other accommodations reserved for females and squelch speech that does not affirm gender identity at odds with sex.

The public statement does not even hint at the elimination of procedural protections for accused students, just promising a "fair, transparent, and reliable process" led by "trained, unbiased decisionmakers" who evaluate "all relevant and not otherwise impermissible evidence."

Agency spokesperson "Elaine" – no surname given – pointed Just the News to the linked resources in the release when asked why the department's primary public statement appears so vague about the changes.

The Independent Women's Forum and Independent Women's Law Center said they are "preparing to sue" to block the regulation from taking effect, repeatedly alleging the administration is lying that it doesn't affect sports.

"I can't wait to take the Biden Administration to court," President Nicki Neily of Parents Defending Education, which is already suing the administration for hiding its Title IX-related communications with activists funded by progressive megadonor George Soros, told supporters in a Friday email blast.

She predicted the public would be flooded with "real-world stories" from K-12 schools of "girls forced to share private physical spaces with biological males or students and teachers facing punishment for 'misgendering'" – using sex-based pronouns for transgender or nonbinary people.

"We see you," radical feminist Kara Dansky, president of Women's Declaration International USA, wrote on X, tagging the accounts for the president and department. "You have eviscerated women and girls as a sex class under Title IX and we will never forgive you."

The Agriculture' Department's threat to cut off federal aid for free and reduced-price lunches from schools that refuse to conflate sex and gender identity, which prompted a wave of lawsuit threats more than a year before USDA released the regulation, presaged the Title IX legal battle.

The most controversial proposals do not appear to have meaningfully changed, particularly that sex discrimination and sex-based harassment include gender identity and treating students by their sex impermissibly imposes "more than de minimis harm" on students with a conflicting gender identity. 

"De minimis" could trigger more than minimal legal scrutiny. The Supreme Court struck down a "de minimis cost" standard invoked by the U.S. Postal Service to prohibit a mail carrier from taking Sundays off to practice his faith, saying it violated postal carrier Gerald Groff's religious liberty.

"Time to stand up, ladies," former Olympian and Levi's brand president Jennifer Sey, who became persona non grata at the denim company for her public criticism of COVID-19 school closures, wrote on X. "They are ... gaslighting us into accepting that there is no actual difference between males and females."

Friday's summary details its contrasts with the Trump administration's 2020 regulation, which itself replaced the Obama administration's guidance on sexual misconduct proceedings that the two-term Democrat's education officials treated as legally binding. 

Biden's regulation looks much like Obama's guidance. It makes optional Trump's required live hearings with cross-examination in college sexual misconduct proceedings, making them less like courtrooms, and replaces its predecessor's use of the Supreme Court's three-prong harassment standard with a much looser either-or standard.

States including Utah and Kentucky have shielded their own students by writing due process protections into their own statutes.

"America’s college students are less likely to receive justice if they find themselves in a Title IX proceeding" without those procedural procedures, Foundation for Individual Rights and Expression legal director Will Creeley wrote on X.

The group sued the Obama administration to stop enforcing its guidance – a case mooted when Trump's education secretary Betsy DeVos rescinded it – and Creeley hinted FIRE would do so again to stop Biden's regulation.

He said the new definition of sexual harassment threatens free expression: "unwelcome sex-based conduct" that is "subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from" education. 

The high court defines it as "severe, pervasive and objectively offensive" conduct – all three prongs required – that "effectively denies equal access" to education, not just "limits" it.

Known throughout his political career for public displays of affection toward females in professional settings, President Biden would have faced "hundreds" of Title IX investigations as a student under his own proposed rules, DeVos previously said.

"I never thought I’d see the day where Title IX would be used to harm women, but sadly, that day has come," DeVos wrote on X

She called the regulation a "u-turn to the bad old days where sexual misconduct was sent to campus kangaroo courts," a single administrator can be the "detective, prosecutor, judge, jury and executioner," and a "coin-flip about guilt or innocence" – the preponderance standard of evidence – can determine a student's future.

Supporters of the changes include the Human Rights Campaign.

"This updated rule is a reminder of what Title IX has been designed to accomplish for more than fifty years: ensure students are safe from abuse, harassment, and discrimination while they pursue their education," said group President Kelley Robinson.

She also pointed out no mention in the new regulations of transgender athletes and called on the administration "to move swiftly to ensure Title IX protects" their rights.