New Title IX proposals from the Biden administration to affirm protections against sexual discrimination against transgender students and others would not significantly change existing policies at California’s university and colleges, officials said Thursday as they assessed the potential impact on the state.
California campuses already prohibit discrimination based on gender identity and sexual orientation. And some of the proposed changes to the Title IX sexual misconduct review processes are already in effect in California under a 2019 appeals court ruling, regardless of federal regulatory revisions.
“It’s unclear if this will really be a turnaround,” said Kiersten Boyce, UC Riverside associate vice chancellor and interim Title IX official.
The Biden administration unveiled the proposed changes Thursday, the 50th anniversary of Title IX – the landmark federal law that prohibits gender discrimination in educational programs or activities that receive federal funding. They are partly intended to be some controversial rules enacted during the Trump administration by Secretary of Education Betsy DeVos and come amid a conservative effort to ban transgender athletes from exercising and limit bathroom use to the gender assigned at birth.
The proposed revisions clarify that the Title IX prohibition on gender discrimination extends to sexual orientation and gender identity. That guidance was announced by the Obama administration in 2016, subsequently retracted by the Trump team, which left the matter to the states. The Biden Administration first stated it would return to last year’s Obama guidelines, after a US Supreme Court ruling that federal bans on “gender bias” must also include sexual orientation and gender identity.
The most heated issue — how students qualify to compete on male or female athletic teams — was not included in the Title IX proposal released Thursday. The US Department of Education said it would come up with a separate proposal in the future.
The University of California, California State University and other public colleges and schools never removed protections for transgender students during the Trump administration. For example, UC’s non-discrimination statement excludes prejudice based on “race, color, national origin, religion, sex, gender identity, pregnancy, disability, age, medical condition (cancer related), ancestry, marital status, citizenship, sexual orientation, or status as a Vietnam-era veteran or special disabled veteran.”
“UC has remained steadfast in its commitment to equitable and inclusive treatment of all members of our community, including transgender and non-binary individuals, despite the positions taken by the previous administration,” UC said in a statement.
UC also found ways to address sexual misconduct complaints that failed to comply with the Trump administration’s stricter Title IX rules. Under DeVos, sexual harassment had to be both “serious and ubiquitous” to qualify for Title IX protection, rather than one or the other, as previous federal rules allowed. UC handled complaints that failed to meet the higher bar through alternative processes based on violations of other campus policies, such as student or faculty codes of conduct, Boyce said.
“The new rules proposed by the Biden administration would not affect the current state of the law in California, which requires due process in student disciplinary matters,” said Mark Hathaway, a Los Angeles attorney who has more than 20 years of experience. 200 students and teachers who have been found guilty of misconduct. cases, most of which involved sexual misconduct.
While current Title IX policies at CSU’s 23 campuses and California’s 116 community colleges also protect transgender students, both systems are investigating the proposal for potential implications for other regulations.
Title IX has not been infallible. At CSU – the largest four-year public university in the country – recently Exploring times have revealed discrepancies in how Title IX and sexual harassment cases involving teachers and students are handled. The interpretation of the law is often subjective, experts say, and investigation procedures and timelines can vary as campuses handle a growing number of cases. It’s unclear how or if the new proposal would better streamline practices.
Some of the Trump administration’s most sweeping changes — the right to a hearing and the ability to cross-examine — were already in use in California under a 2019 Court of Appeal ruling. The court ordered campuses to issue those due process protections for students accused of sexual misconduct as a matter of “fundamental justice.” The court also said that the same person investigating the complaints cannot also determine whether they are credible — a “single investigator model” used by UC and other campuses at the time — because it erroneously “declares the overlapping and inconsistent roles of investigator, public prosecutor, fact finder and assessor.”
Biden’s proposed regulations would not require cross-examination, although a university could allow it if desired. Nor would they need a live hearing to evaluate evidence or several people to investigate a complaint and determine its credibility. But those practices, ordered by the appeals court, are expected to remain on California campuses, university officials said.
Boyce from UC Riverside said she was still reviewing the… 701-page Title IX proposal† She said she was excited to see if they provide new tools to combat sexual assault, better protect transgender students, address retaliation against those who file complaints, and support pregnant students and workers.
President Biden’s Education Secretary Miguel Cardona said: Title IX has been “instrumental” in the fight against sexual assault and violence in education.
“As we celebrate the 50th anniversary of this landmark law, our proposed changes will enable us to continue that progress and ensure that all of our nation’s students — regardless of where they live, who they are or who they love – able to learn, grow and thrive in school,” he said.
This story originally appeared in Los Angeles Times†