The midlife crisis of Title IX

Today marks the 51st anniversary of Title IX, the landmark civil rights law that protects against sex discrimination, including sexual assault, in education. While it should be a celebratory moment, I’m worried about Title IX’s future.

Early in 2016, I joined the U.S. Department of Education’s Office for Civil Rights (OCR) as a Title IX policy attorney. This was a dream job — until the Trump administration took office.

Afterwards, I watched in dismay and shock as my office unraveled. One of Betsy DeVos’s first actions as secretary of Education was rescinding key guidance addressing Title IX protections for trans students. She then gutted Title IX protections for student survivors — protections that the Biden administration still has not restored.

What ultimately drove me to leave OCR in 2018 was not only the change in policy but in ideology. I heard Trump officials refer to students accused of sexual assault as “victims” and express more concern for the well-being of accused students than those who were sexually assaulted. The head of OCR told The New York Timesthat 90 percent of student sexual assault complaints “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”

Statements like these echo what male supremacists and right-wing extremists like Phyllis Schlafly and Paul Elam have said about sexual violence for years, downplaying it and blaming victims, especially women who are not deemed “virtuous.” These radical extremists push the lie that women and girls can’t be trusted when they speak about sexual assault. They create false equivalencies between the experience of false accusations and of sexual assault. They lie, claiming it’s a myth that domestic violence is mostly perpetrated by men. They argue men accused of sexual assault are the “true” victims. And they spread misinformation by asserting sexual assault isn’t common, when reliable data shows that in education alone, sexual violence victimizes at leastone in five undergraduate women, and around one in five teen girls.

In resonance with how powerful men invoke due process to prevent accountability for sexual harassment, extremists complained that Obama-era guidance violated accused students’ due process rights to argue for weaker Title IX protections against harassment (never mind that the guidance required fair processes and was enforced to protect accused students). Indeed, men accused of sexual assault are suing their schools, claiming “anti-male bias,” dangerously suggesting that treating allegations of sexual violence seriously is an attack on men.

This much is clear: When it comes to sexual violence, the male supremacist agenda is to ensure that no one, especially men, will be held accountable for committing it. And yet male supremacists are precisely who DeVos listened to when creating her Title IX rule. As revealed through thousands of emails, they were deeply involved in creating the Trump administration’s Title IX rules — rules that are still in effecttoday. It’s no wonder, then, that these rules significantly weakened protections against sexual harassment, permitting schools to ignore sexual harassment and allowing survivors to be cross-examined by their rapists’ parents or friends.

Amid this failure to protect student survivors, we are also witnessing an unprecedented attempt to stoke fear and division by targeting trans students. Extremists are seeking to bar trans kids from playing school sports, using bathrooms, or accessing life-saving gender affirming care. Make no mistake that these attacks, on the trans community and on survivors, are fueled by the exact same desires: to control us and our bodies, forcing us all to live within the rigid boundaries of strict gender roles.

Fortunately, under the Biden administration, we have an opportunity to take control back, and while much work has been done, students desperately need them to cross the finish line.

Last summer, the Biden administration began the process to strengthen the Title IX rule. President Biden’s changes would undo much of the Trump administration’s Title IX rule, restoring protections for survivors, and would ensure that trans and nonbinary students are treated consistent with their gender identity.

Unfortunately, the administration recently announced that the final rule will not be in place until October. This means that millions of students will start the school year without adequate protections.

This is devastating, especially because more than 50 percent of college sexual assaults occur in the first four months of school. Survivors will be punished for speaking out, pushed out of school and harassed by abusers. They will develop PTSD, anxiety and depression.

Waiting until October has a terrible cost.

The Biden administration must not wait to reverse the Trump-era rule. Title IX may be more than 50 years old, but it is a living law that we cannot take for granted. We should always work tirelessly to safeguard it.

Shiwali Patel is director of Justice for Student Survivors and senior counsel at the National Women’s Law Center. Previously, she worked at the Department of Education’s Office for Civil Rights on policy and legal guidance interpreting Title IX’s anti-discrimination protections.