When Title IX of the Education Amendments of 1972 was enacted, it provided that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
At first, Title IX primarily impacted the administration of women’s athletic programs. Faced with possible loss of federal funding, schools promptly moved to provide female athletes with facilities and opportunities equaling those of their male counterparts.
But over time, a relentlessly self-aggrandizing U.S. Department of Education interpreted the scope of Title IX to encompass, among other things, sexual harassment. In 2011, the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter to school districts, colleges, and universities advising that “sexual harassment of students” was “prohibited by Title IX.”
The Department of Education is using the resources and force of government to promote the transgender agenda.
The letter defined sexual harassment as “unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” It required schools to “take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.” This included the obligation to “promptly investigate” and “take appropriate steps to resolve the situation.”
Recipients were advised that the Department of Education could deem even one incident of sexual harassment as “creat[ing] a hostile environment if [it] … interferes with or limits a student’s ability to participate in or benefit from the school’s program.”
With that warning, America’s universities wasted no time setting up enforcement mechanisms to stamp out sexual harassment on their campuses. In doing so, most suspended due process and fundamental fairness in their pursuit and prosecution of male student defendants. The resulting campus kangaroo courts routinely convicted the accused on nothing more than the unsubstantiated word of a complainant. This was relatively easy to do, since an accused most often was allowed neither access to the evidence against him nor a hearing.
One of the primary architects of this campus crusade was attorney Catherine Lhamon. From 2013 to 2017, she served as the Department of Education’s assistant secretary for the Office for Civil Rights. As reported in RealClearEducation by Boston College professor R. Shep Melnick and Yale Law School’s Peter H. Schuck:
[Lhamon] redefined sexual harassment so broadly and with so few procedural rights for the accused that protests and lawsuits erupted from all sides of the political spectrum. She pressured schools to inflate their Title IX bureaucracies and adopt a “single investigator” model in which one person appointed by the school’s Title IX office collects evidence and determines guilt or innocence—with no hearing, no cross-examination of witnesses, and limited right to appeal.
In other words, pursuant to Lhamon’s guidance, universities ran kangaroo courts that disciplined, expelled, or otherwise ruined young male students without the barest semblance of due process. Since the unstated but fundamental purpose of such tribunals was to safeguard the flow of federal funds to the school, fair treatment of the accused was of no concern or consequence.
During the Trump administration, the Department of Education rescinded the “Dear Colleague” letter and instituted new Title IX regulations that eliminated the “single investigator” model and required that the accused be afforded access to all evidence possessed by the school, a hearing at which witnesses would have to appear, the right to cross-examine those witnesses, and an unbiased tribunal.
These changes combined with the removal of the implicit threat against the schools’ federal funding greatly reduced — but did not entirely eliminate — the railroading of male defendants.
But now, with the advent of the Biden presidency, the threat posed by the defunct “Dear Colleague” letter has returned with a vengeance, along with a new mission to enforce and protect transgender rights.
On March 8, 2021, President Joe Biden issued Executive Order 14201, which states:
It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment … and including discrimination on the basis of sexual orientation or gender identity (emphasis added).
Biden also directed that the secretary of education “shall consider suspending, revising, or rescinding … agency actions that are inconsistent with” this policy as well as take steps “to account for the significant rates at which students who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ+) are subject to sexual harassment.”
On June 16, 2021, the Department of Education issued a new policy directive stating that discrimination based on a student’s sexual orientation or gender identity will be treated as a violation of Title IX. In announcing this policy, Education Secretary Miguel Cardona proclaimed, “Today, the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools free from discrimination.”
Subsequently, Lhamon was reinstated as the assistant secretary for Civil Rights. Ever the radical, during her Senate confirmation hearing, she readily acknowledged tweeting that the Trump era reforms had made it possible “to rape and sexually harass students with impunity.”
So, what does all this mean, and how will it play out in practice?
Consider the following hypothetical scenarios:
Diane, a formerly male transgender student athlete, walks into the women’s locker room, disrobes, and, with fully exposed genitals, stares at the female occupants who are in a state of undress. The females are embarrassed, upset, and offended. Has Diane engaged in nonverbal or physical conduct of a sexual nature? Has Diane created a hostile environment for the female athletes? Has Diane interfered with or limited the females’ ability to participate in or benefit from the school’s athletic program? In short, should Diane be charged, prosecuted, and disciplined for sexual harassment?
On the other hand, given the Biden transgender policy, if the female athletes told Diane to get out of the locker room, would that constitute a hostile environment or an interference with or limitation on Diane’s ability to participate in or benefit from the school’s athletic program?
And would the same reasoning apply if the female athletes complained to the school’s administration about Diane’s behavior?
Moreover, before the school initiated any disciplinary action, wouldn’t it be necessary to establish that Diane was truly a transgender female as opposed to a male looking for a cheap thrill? If so, how would that be done? Would Diane’s mere assertion of gender identity suffice? Or would other evidence, such as a course of transgender hormone therapy or genital surgery, be required?
After all, just what are the intrinsic and defining characteristics of transgenderism?
U.K. humorist Andrew Doyle has summed up the problem nicely. He is the brilliant creator of the hyper-woke fictional character Titania McGrath, who recently tweeted the following:
Why do bigots find gender identity so confusing?
It simply means the immutable yet fluid feeling that one is male or female or neither or both based on conceptions of masculinity and femininity that are innate but also social constructs that don’t exist.
This really isn’t hard.
— Titania McGrath (@TitaniaMcGrath) April 29, 2023
Titania’s hilarious tweet is a telling and fitting distillation of the transgender movement’s amorphous, indecipherable, and self-contradictory tenets. It is upon this slurry of irrationality that transgender identities and rights are based.
All of this would be laughable save for the fact that the Department of Education is using the resources and force of government to promote the transgender agenda.
So how are the targeted institutions of higher learning going to satisfy the government’s mandate? In a contest between members of two protected groups — females versus transgenders — whose rights shall take precedence? And how can schools enforce one side’s rights without violating or diminishing those of the other?
This looming legal conundrum is a prime example of ideologically driven progressive government at its finest. It is, therefore, quite satisfying that our colleges and universities that have spawned and embraced this transgender silliness are about to reap what they have sown.
It will be fun to watch this mess unfold.
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net and can be reached by email at firstname.lastname@example.org.
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