The White House finalized a new rule under Title IX that expands protections for students who experience sexual violence as well as expands protections for LGBTQ students and parenting and pregnant students.
The Biden administration finalized the new Title IX rules last month for schools that receive federal funding. The rule protects against discrimination based on sex stereotypes, sexual orientation, gender identity and sex characteristics. It provides greater clarity on the definition of sex-based harassment, protects students who are parenting or pregnant from discrimination and obliges schools receiving federal funding to provide an educational environment free from discrimination on the basis of sex.
The rule will be implemented in August. That gives campuses the spring and summer to update their policies and procedures.
Some Republican states have already sued to block the rule change.
The rule rolls back some Title IX changes the U.S. Department of Education made under former President Donald Trump. Under the Trump administration, the ability to report sexual assault on campus became much harder, Kel O’Hara, senior counsel for Equality Rights Advocates, told NM Political Report. Since the Trump changes in 2020, the definition of sexual harassment or violence was more restrictive, which meant campus administrators couldn’t always take action. Victims had to endure a live hearing process which had the potential to be retraumatizing and frightened some from reporting. A victim had to still be a student to report the incident, under the Trump rule changes, even though statistically, many survivors of sexual violence do not report right away.
O’Hara said that the changes the Biden administration has made to roll back the Trump rules allows for a more “holistic assessment of what is the impact.”
“Schools can respond more effectively if it’s getting in the way of a person’s education,” O’Hara said.
In addition, campuses, under the 2020 Trump changes, were restricted on taking action if an incident of sexual assault or harassment took place off campus, even if that meant the incident happened in off-campus housing. Under the Biden administration rule, this restriction has also been lifted.
Elena Rubinfeld, legal director for New Mexico Coalition of Sexual Assault Programs, told NM Political Report that “the things put in place in 2020 made the process more challenging for survivors.”
“Luckily it’s changing,” she said.
Rubinfeld said the New Mexico post-secondary affirmative consent law, enacted this year, and the new Title IX rule, “accomplish important things to ensure allegations of sexual violence are handled as they should be by post-secondary institutions.”
The New Mexico post-secondary affirmative consent law sets a standard of what consent for sexual activity means, such as that a person cannot give consent for sexual activity if they are asleep and that a past relationship or a past dating history do not imply consent, Rubinfeld said.
She said that Title IX does not adopt a federal definition of affirmative consent.
Rubinfeld said that there are aspects of the New Mexico post-secondary affirmative consent law that are reflected in the Title IX rule, such as confidentiality, privacy, prevention and training.
“One thing our state law will do is ensure amnesty is provided for certain acts around the time of the sexual violence. Students coming forward when experiencing illegal drug use or drinking underage are not penalized for their actions,” she said.
While the Title IX rule prohibits discrimination against LGBTQ individuals, it does not include a provision to protect transgender students who want to play on a sports team consistent with their identity. O’Hara said advocates believe the Biden administration will issue such a rule separately and that it likely won’t happen before the general election in November.
But, that leaves for some gray area since the new rule prohibits discrimination for LGBTQ individuals. O’Hara said five conservative states have already challenged the new Title IX rule. She said there could be more challenges from conservative states in the months ahead.
Rubinfeld called the omission of addressing transgender students who want to play school athletics consistent with the students’ gender identity “disappointing.”
“This is about supporting students and ensuring access to resources that help them and lower the rate of sexual assault in the community as well,” she said.
