February 06, 2018

Title IX enforcement: “Rules” on gender identity, college-campus sexual assault shift under Trump

The topsy-turvy shift in Title IX enforcement from previous administrations to the current one was the focus of a detailed analysis Saturday by Title IX expert Daiquiri Steele at the ABA Midyear Meeting in Vancouver.

In a detailed series of “before” and “after” descriptions, Steele walked the audience through significant differences in Title IX enforcement introduced recently by the Trump administration, expected to significantly alter the federal government’s relationship with educational institutions across the country and directly impact students from kindergarten through college. At the same time, Steele warned, much – particularly involving gender identity issues – is still up in the air.

“I’m not going to tell the end of the story right now,” she told the audience. “We don’t know what it is. I’m going to tell the why.”

Steele, currently director of diversity and inclusion and assistant professor of law in residence at the University of Alabama School of Law, is a longtime authority on Title IX of the Education Amendments of 1972. She previously served as a civil rights attorney with the Department of Education’s office charged with Title IX enforcement. There, she provided legal counsel relating to federal investigations of discrimination involving school districts, colleges and universities and state educational agencies. 

Steele is also active in the ABA where, among other roles, she is currently a member of the ABA Standing Committee on Public Education and has served as a commissioner on the Commission on Racial & Ethnic Diversity in the Profession.

When enacted, Title IX transformed how schools and colleges that receive any federal funding –the vast majority of educational institutions in the United States – handle critical issues by prohibiting discrimination based on sex. While the most public image of Title IX is as a revolutionary force in women’s college athletics, Title IX has had a sweeping impact across a wide range of school activities and interactions among students, faculty and staff.  

“Just about anything a school does will be subject to Title IX,” said Steele at the session, “Hot Topics in Diversity Law: Title IX Updates,” an annual Midyear Meeting presentation by the Section of State and Local Government Law.

In recent years, the impact of Title IX has been focused on high-profile controversies involving discipline in campus sexual assault cases, as well as gender identity and bathroom usage -- and those are the areas where enforcement is changing rapidly under the Trump administration.

Regarding the controversies raging nationwide on whether students should be confined to using school bathrooms based on their birth gender, or be permitted to use bathrooms conforming to their “gender identity” (a student’s sense of their gender that may not match their sex assigned at birth), the Obama administration Education Department had issued Title IX guidance in 2016. That guidance – known as a “Dear Colleague” letter – interprets "sex discrimination" to include claims based on gender identity, Steele explained. In other words, when it comes to school bathroom use, if a student born female believed their true identity is male, the schools must permit that student to use the males’ bathroom, she noted.

The ruling helped give rise to a number of high-profile lawsuits around the country, including high-schooler Gavin Grimm, a transgender boy in Virginia who sued to be able to use the boys’ bathroom in his school.

And that’s where the situation gets murky. Grimm had won at the appeals court level after the court deferred to the Obama administration’s 2016 guidance – a seeming victory for transgender students. But the victory was short-lived when Trump on Feb. 22, 2017, withdrew and rescinded the Obama’s 2016 gender identity and sex discrimination guidance.

“The Department of Education just said ‘Oh, never mind, don’t worry about that,’” said Steele. At this point, she said, the Education Department’s Office of Civil Rights is no longer taking discrimination cases based on sexual orientation, although some colleges and universities may still have rules that still permit gender identity to determine bathroom use.

On sexual harassment and sexual violence, Steele said, changes are much clearer. On Feb. 22, 2017, the Trump administration significantly altered detailed Obama-era guidance to schools with its own “Dear Colleague” letter.

In an examination at “new rules vs. old rules,” Steele demonstrated that the new standards for – among other things – burden of proof, the use of mediation and cross examination of alleged sexual assault victims – now give individual schools substantially more latitude in how to address these cases.

As an example, the burden of proof change is “huge,” said Steele. The “old rule,” she said, identified the “preponderance of evidence” standard as the standard of proof in campus sexual assault cases. But the “new rule,” she said, allows schools to choose between the "preponderance of the evidence" standard of proof and a higher "clear and convincing" standard when determining guilt.

Under the old rule, mediation was discouraged as “inappropriate in campus sexual misconduct,” she said. The reasoning, she said: “This is not a ‘You stole my homework’ case. This is about sexual assault.” 

However, the new Trump administration guidance permits schools to facilitate an “information resolution, including mediation, to assist parties in reaching a voluntary resolution.”

And on cross examination of alleged sexual assault victims by the accuser, it was “strongly discouraged” under the old rule because it had the potential of putting that individual in a hostile environment that could prove traumatic for the alleged victim, Steele said.

The new rule states that “any opportunity that a school makes available to one party, they have to make available to the other party, including cross examination,” she said.

While not explicitly included in the Trump administration’s “Dear Colleague” document, she said its standards on other issues involving campus sexual assault proceedings can be extrapolated.

For example, she said, under the old rule, schools had to be careful taking the sexual history of the alleged victim into evidence. Now, she said, “that is no longer the rule.”

In addition, schools were formerly cautioned against using any previous sexual relationship being used as evidence of consent. Now, “that may no longer be the rule,” she said.

“So, the takeaway, unfortunately,” she said, “is a lot of this is up in the air as to gender identity.” With respect to sexual misconduct, she said, “We actually do have rules. They are just new rules, many of which are in stark contrast to the previous rules.”