Cardona's move to codify protections for sexual orientation and gender identity in Title IX could set up a fight that's just as divisive as the rule that attracted five lawsuits. The definition of sexual harassment was narrowed by her rule, which took effect in August 2020.
Cardona's proposed rule would be a shield for already marginalized kids looking for inclusion, but for Republicans it was a spear of advancement.
The Supreme Court has upheld the right for people of the same sex to live and work without fear of discrimination.
Cardona's rule won't take effect until the regulatory process is over. Republican attorneys general and conservative groups are likely to file lawsuits.
Republican governors and GOP-controlled legislatures have advanced laws and policies over the past year that allow investigating parents who seek gender-affirming care for their kids and bar trans people from using the bathroom that matches their gender identity. Several more states are in the process of getting their laws across the finish line that restrict sports participation for trans athletes. Many of them have cited the Biden administration's early interpretation of Title IX's protections for trans students as a key motivator of what kicked off a year of gender-focused conservative legislation.
The five biggest issues to watch are:
In June of last year, the Education Department announced that Title IX would be applied to the group after several years without it. The Obama-era directive was scrapped by the Secretary of Education.
The Biden administration's interpretation of the law is expected to be written into the regulation. The Washington Post reported in March that a draft of Cardona's Title IX proposal said discrimination on the basis of sex includes sex stereotypes.
Legal challenges are trying to halt the enforcement of the department's latest interpretation, which is based on the landmark Supreme Court ruling in Bostock v.
Advocacy groups have argued that the rule weakens protections for survivors of sexual harassment and has deterred them from reporting it. The rule is expected to be friendlier to those who report sexual harassment.
According to the National Women's Law Center, sexual harassment was defined by the Education Department as conduct of a sexual nature. The center argued that the regulation requires schools to dismiss complaints if the harassment is so severe, pervasive and offensive that it effectively denies a person equal access to the recipient's education program or activity.
The department will be eroding due process for students who are accused of wrongdoing.
There is no reason to eliminate a set of due process rules that uphold the fundamental protections of our legal system that were badly needed to remedy a pattern of abuses.
Former Education Secretary Betsy DeVos speaks during a briefing at the Department of Education building in Washington on July 8, 2020. | Manuel Balce Ceneta/AP Photo, File
Title IX experts say the fear of reporting isn't unwarranted as they have seen a decrease in the number of formal complaints filed with schools. During the third change in three administrations, they are looking for middle ground.
The Association of Title IX Administrators is watching to see if the department will maintain the prescriptive approach.
The regs tell you what the guardrails are, but they also tell you how to pave the road and drive down the road.
The provision codifying protections for trans students is drawing ire from conservative state attorneys general who say it would clash with their state laws. Several more states are in the process of getting their own measures in place to restrict the use of trans athletes.
A coalition of Republican-led states, headed by Tennessee Attorney General Herbert Slatery, is suing to bar the Education Department from enforcing its interpretation of Title IX, which prohibits discrimination based on gender identity and sexual orientation.
The 20 attorneys general argued that their states face a threat of losing federal funding due to policies and laws that prohibit trans students from playing sports, using locker rooms, or staying in residence halls that match their gender identity.
There hasn't been a decision yet after a hearing in November.
The attorneys general called on the Office for Civil Rights to stop the rewrite of Title IX because it redefined biological sex to include gender identity.
The rule is expected in May. The Education Department doesn't have to wait until all the meetings have taken place to release the proposal because they are scheduled through mid-May.
It will take several months for the regulatory process to unfold, and a final rule isn't likely until next year, according to advocacy groups. The public is given a period of 30 to 60 days to comment on the proposal.
The rule is still in effect during the review period, but Cardona issued a 67-page question-and-answer document on how schools should navigate it.
House Republicans want to ban athletes from playing on sports teams that match their gender identity.
Since 2003 trans women have been allowed to compete in women's sports in the Olympics. The NCAA has the ability to determine eligibility requirements for each sport after it updated its policy on the participation of trans athletes.
The Protection of Women and Girls in Sports Act was introduced in January of 2016 and has not been taken up by the House Education and Labor Committee.
While Banks is unlikely to get the 218 signers he needs to force a floor vote on the bill, which attempts to define sex in Title IX based solely on a person's reproductive biology and genetics at birth.
The Title IX rule's viability could be affected by the election. The longer it takes the agency to implement the Title IX rule, the more likely a future GOP majority in Congress will use the Congressional Review Act to overturn major rules issued by federal agencies.
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