(The Federalist)—One of the issues with Title IX, the law that protects the civil rights and equality of men and women at school from K-12 through college, is that it can be manipulated and changed by successive presidential administrations to conduct bizarre social experiments and undermine the law’s original purpose.
This “policy whiplash” — seen clearly through the stark contrasts in Title IX enforcement from Obama, Trump 45, Biden, and Trump 47 — only means that schools have to change on a dime to accommodate a far-left attempt at destruction, a conservative attempt to fix those issues, and then another four years of even more intense destruction, followed by a return to something resembling normal.
It means, more importantly, that boys and girls in school are not seeing their rights protected, particularly in times, for example, when Democrat administrations try as hard as they possibly can to make going to school dangerous for girls by making them use the same facilities as boys.
The Federalist reviewed a proposed law from the Defense of Freedom Institute (DFI) — an organization comprised of many of the people in Trump 45’s Department of Education charged with cleaning up the mess left by the Obama administration — that would make statutory updates to Title IX to ensure it can never be used for the backwards and immoral social corruption and experimentation goals of the left again.
“Title IX was designed to protect students from sex-based discrimination — not to serve as a tool for radical gender identity activists,” DFI co-founder Bob Eitel told The Federalist. “Our model law provides a blueprint to stop the regulatory ping-pong as administrations come and go and ensures critical protections for women and girls, guarantees campus due process in Title IX disciplinary proceedings, and enshrines parental rights.”
The American people just experienced one of the most radical attempted eviscerations of a law in history when the Biden administration tried to change the definition of sex to include any claim by anyone that they are some incoherent “gender identity,” and are therefore guaranteed the right to join the sports teams, undress in front of, and sleep in the same overnight accommodations as the opposite sex — no questions asked.
It did not stop there. It also stripped the due process rights of anyone in college — mostly men — who are accused of Title IX violations like sexual misconduct, even if those accusations are false.
The Biden administration’s rules are no longer in place, as they have been struck down nationwide by a district court and the Trump 47 replaced them with the 2020 version Trump 45 first promulgated. But those only came after the Obama administration attempted to govern Title IX using a dangerous patchwork of pseudo-rules noted in a 2011 “Dear Colleague” letter — something that remained in place until Trump 45 was able to complete the lengthy rulemaking process by the end of the first term.
As Eitel points out, that whiplash will continue “unless Congress acts,” adding, “Title IX will remain vulnerable to the whims of future administrations.”
DFI’s RESPECT Title IX Act would codify “core protections” of the statute to their original purpose, which the group describes as “prohibiting discrimination on the basis of sex, not gender identity, in education while protecting single-sex sports, housing, and intimate facilities.”
“By manipulating the plain language of one brief, simply worded federal civil rights law—Title IX— the Biden Administration was able to obliterate free speech, women’s equality, due process, and ideological diversity in federally funded schools with the stroke of a pen,” Sarah Parshall Perry, vice president and legal fellow at Defending Education (DE) said. “In so doing, it ignored a mountain of evidence relative to Title IX’s incontrovertible origins in the movement for educational equality, played favorites with preferred classes of students to the detriment of others, and treated both religious and secular objectors as targets ripe for federal investigation. DFI’s model legislation aims to prevent a future administration from ever again playing fast and loose with a long-standing federal law to achieve its own desired political ends. Their bill is not just a welcome development — it’s a critical one.”
Gender Ideology And Sex-Based Preferences
DFI’s proposed law would codify the definition of “sex” based on immutable biology, as opposed to gender identity or ideology, and ensure that Supreme Court precedent in Bostock v. Clayton County — Justice Neil Gorsuch’s decision that transgender ideology be applied to Title VII employment law — cannot be applied to Title IX.
Bostock was one of the primary tools cited by the Biden administration for upending Title IX in the first place, along with all other federal law, as expressed in a day-one executive order.
Along the same lines, the law would protect sex-separated intimate facilities like restrooms, locker rooms, and changing rooms from being forcibly infiltrated by members of the opposite sex, and prohibit schools, colleges, and universities from requiring that anyone share those facilities with the opposite sex.
Likewise, the law would protect the right to have sex-separated sports programs, so that men cannot compete against women, inevitably putting the women in danger while stealing titles, records, and championships from them.
In order to stop the diversity, equity, and inclusion (DEI)-oriented agendas pursued by the left, the law would prohibit sexual preferences in academics under the “guise of Title IX enforcement,” or “for the purpose of remedying societal discrimination,” DFI documents state.
Campus Due Process and Free Speech
Under Obama and Biden iterations of Title IX, those accused of sexual misconduct under Title IX on college campuses were essentially stripped of due process rights.
A student could be found guilty without ever seeing the full scope of “evidence” weighed against them, there was no right to a live hearing, no right to cross examine, and they used what is called the “single investigator” model — essentially allowing one Title IX officer to act as judge and jury in investigating the incident and then deciding guilt.
DFI’s rules would restore due process rights to accused students protected in the Trump 45 regulations, including requiring access to evidence, allowing appeals, and mandating live hearings, as well as forever ban the “single-investigator” model.
It would also require schools at all levels to address sexual harassment and misconduct in programs and activities, but block them from being able to include protected free speech as “sexual misconduct.” (For example, if a student talks about traditional gender roles in a class, that person cannot be waylaid by a Title IX sexual harassment allegation as was possible under Obama and Biden regulations).
For K-12 schools, the proposed law would create a federal commission to investigate sexual misconduct among teachers, instead of allowing school districts (at the behest of teachers’ unions) to continue to “pass the trash” to other districts — a practice protected by the Biden administration.
Parental Rights, The Family, And Faith-Based Institutions
DFI’s proposal would codify the right of parents to direct the upbringing of their child’s education.
It would require that schools and universities provide reasonable modifications to and leave of absence from programs to accommodate pregnant students, while ensuring that nothing in Title IX could be construed to mean that institutions have to pay for or otherwise facilitate abortion.
For faith-based institutions, the proposed law would allow for a more robust process for granting exemptions from Title IX compliance to accommodate religious tenets.
No More Chances To Screw It Up
After those protections are enshrined in law, DFI’s model legislation would then block any federal agency from conducting rulemaking under Title IX ever again, leaving it with a robust statutorily guaranteed framework without the opportunity for another far-left overhaul.
The proposed law draws wide support from women’s rights, education advocacy, and law groups like the Independent Women’s Forum, Southeastern Legal Foundation, the Liberty Justice Center, the Ethics and Public Policy Center, Dillon PLLC, and the Independent Women’s Law Center, among others.
“American campuses today are extensively governed by Title IX and its regulations. From athletics, to bathrooms, to sexual harassment allegations, Title IX is an inescapable feature of school life. And those schools and their students suffer when predictability and certainty give way to radical ideological demands made by activist groups, or previously, to the Biden-Harris Administration,” William E. Trachman, General Counsel at the Mountain States Legal Foundation and former Deputy Assistant Secretary at the U.S. Department of Education Office for Civil Rights, said. “What DFI has done here is to restore the values of predictability and certainty, while ensuring that the original and enduring definition of ‘sex’ is never distorted or watered down. I applaud this effort, and look forward to seeing a day when fairness, due process, and biological reality are firmly entrenched in American law.”