Title IX of the Education Amendments Act of 1972 is the federal law that prohibits sex discrimination at any school, college or university receiving federal aid. The law essentially covers every single college or university in the United States and its purpose is to create school campuses that are free from sexual assault, sexual harassment and discrimination based on one’s sex or gender. Since it’s passage in the 1970’s the law was later interpreted to include sexual orientation and gender identity.

During the Trump Administration, Secretary of Education Betsy Devos aimed to overhaul the process under the guise of making the rules fair to both the accuser and the accused. The net result leads to less protections for victims of sexual assault. The changes, which went into effect in the final year of Trump’s presidency, are as follows:

• New definition of assault: Prior to the Trump era, schools under Title IX were required to investigate any and all instances of “unwelcome conduct of a sexual nature.” The new definition of sexual harassment only includes conduct that is “so severe, pervasive, and objectively offensive that it denies a person equal educational access.” This new definition serves to reward sex abusers by limiting the types of claims that can be brought by victims. While conservative rights group hailed the rule, civil rights groups say the Trump rule is too easy on the accused and will discourage sexual assault victims from coming forward.

• Notification rules: Under the Trump rule, Title IX resources and procedures only kick in when a school has been formally notified through their Title IX coordinator. By contrast, earlier guidance allowed for informal notification from members of the local community, social networking sites, or the media. This new rigid rule makes access to the complaint process arduous and time-consuming. The fear is that, in limiting the channels of reporting, sex assault and harassment victims will not come forward to seek redress.

• Live hearings: In the past, schools were able to conduct a less formal investigation into any potential Title IX violations. Administrators were allowed to interview both the accuser and accused separately to determine whether a Title IX violation occurred. Under the new Trump rule, schools are now required to conduct live hearings. A person accused of sexual misconduct now has the right (through a designated representative) to confront and cross-examine the victim. Again, this change in the law only serves to place victims in a vulnerable position. By forcing a victim to attend a trial-like setting, the victim will often be re-traumatized. The net effect is that many victims will no longer report sex assault because the process is too emotionally painful.

• Standard of proof: Prior to the Trump era, schools used the “preponderance of the evidence” standard. This simply means that a school could find an abuser guilty of a Title IX claim if it was “more likely than not” the person committed the sexual misconduct.

  Under the Trump rules, each school is allowed to use either the “preponderance” standard or the more stringent “clear and convincing” standard, which makes it much more difficult to find an abuser guilty. The caveat here is that, in choosing which standard to apply, schools must use the same standard for student misconduct as they do for teacher misconduct. The problem with this rule is that most teachers belong to unions, and their union contracts usually insist that a “clear and convincing standard” be used. The end result is that most schools will be forced to use a standard of proof that weighs heavily in favor of the abuser.

  Proponents of the “clear and convincing” standard argue that it gives the same rights to the abuser as it does the abused. Alternatively, advocates for victims contend that using a more rigorous standard of proof will mean that victims of sexual assault—already reluctant to come forward—will be even less likely to institute complaints.

• LGBT protections: In January 2021, Secretary Devos issued a memorandum that stated LGBT persons are not specifically included under Title IX solely on the basis of their sexual orientation or sexual identity. This effectively leaves gays, lesbians and trans persons without any effective legal remedy to combat harassment, bullying or sexual assaults on the basis of LGBT identity. Gay rights and civil rights organizations were appalled that Secretary Devos marginalized the LGBT community and they have been lobbying the Biden White House to take steps to fix this huge problem.

Upon entering office in January 2020, President Biden voiced great concern over the Trump era Title IX changes and directed his Secretary of Education to immediately take steps to foster an environment that protects victims in schools.

In April 2021, the Department of Education began the process of unraveling the Trump era changes, announcing a comprehensive review, including a 5-day public hearing in early June in anticipation of beginning the formal rulemaking process that will culminate in May 2022. The hope is that the Biden changes will create an environment where all students are afforded equal opportunity to an education without the fear of sexual harassment or sexual assault.