What Will Happen to Title IX Under Trump?

Obama strengthened protections for sexual assault victims and trans students. Trump could undo all that.

Betsy DeVos, President-elect Donald Trump's pick to be the next Secretary of Education, testifies during her confirmation hearing before the Senate Health, Education, Labor and Pensions Committee in the Dirksen Senate Office Building on Capitol Hill  January 17, 2017 in Washington, DC.
Secretary of education nominee Betsy DeVos during her confirmation hearings on Capitol Hill on Jan. 17, 2017, in Washington, D.C.

Chip Somodevilla/Getty Images

If it’s seemed like campus sexual assault has become a more urgent, mainstream issue over the past six or so years, that’s partly the doing of Barack Obama. Sexual violence on college campuses was one of the central focuses of the Department of Education under Obama, who oversaw a strengthening and broadening of the protections students are guaranteed under Title IX, the 1972 law that prohibits sex discrimination by any education program that receives federal funding.

President Donald Trump has the capacity to roll back much of the progress the federal government has made in getting U.S. universities to take campus sexual assault seriously as an issue of sex discrimination. With his judicial appointments, Cabinet nominations, and executive directives, Trump can force colleges to revert to adjudication systems that favor accused rapists. He can let hostile environments for transgender children fester with violence. And he can refuse to continue the hundreds of open investigations against universities accused of mishandling, ignoring, or covering up rampant sexual abuse.

Obama’s Department of Education was behind the now-famous “Dear Colleague” letter that established sexual assault and harassment as critical Title IX issues in 2011. The letter said that schools should usually be able to complete investigations of alleged sexual misconduct within 60 days and directed schools to evaluate cases based on the “preponderance of the evidence” standard, rather than the more stringent “clear and convincing evidence” standard some had used. The directive prohibited schools from making victims sign nondisclosure agreements and told colleges they’d be put on notice if they didn’t take immediate action to prevent harassment of victims. The department’s Office of Civil Rights, or OCR, opened investigations into more than 300 schools for failing to appropriately respond to sexual violence after the letter came out. In 2014, the administration further strengthened its guidelines for protecting students, recommending evidence-based prevention programs and requiring schools to conduct surveys about sexual violence on campus.

Republicans did not like the OCR’s beefed-up power to enforce Title IX’s protections against discrimination. Sexual assault claims should be “investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge,” the 2016 GOP platform stated. Obama had set out to “micromanage” universities’ systems for addressing rape, it said, and the OCR’s “distortion of Title IX … must be halted.” The platform took even greater umbrage at the Department of Education’s interpretation of Title IX as a prohibition of discrimination against transgender students. With its order to protect trans kids from abuse in schools, the Obama administration was “determined to reshape our schools—and our entire society—to fit the mold of an ideology alien to America’s history and traditions,” the GOP platform said.

As the country’s top Republican, who seems liable to act in accordance with whatever extreme advice he gets first, Trump will almost certainly take the GOP’s disdain for federal discrimination protections to heart. The first sign of the Trump administration’s coming assault on Title IX was the president’s nomination of Betsy DeVos for secretary of education. DeVos, who may squeak by the Senate in a Mike Pence tiebreaker, said in her confirmation hearing that it would be “premature” to pledge that she’d hold to Obama’s Title IX guidance. “If confirmed, I look forward to understanding the past actions and current situation better, and to ensuring that the intent of the law is actually carried out in a way that recognizes both the victim … as well as those who are accused,” she said.

Sen. Patty Murray, D-Washington, said she was “not happy” with the way DeVos spoke of campus sexual assault when the two of them met before the hearing. Students and Title IX advocates have been tweeting #DearBetsy for weeks, asking the potential future secretary to uphold the department’s strengthened capacity to make schools address sexual assault and its 2016 guidance on protecting trans students from discrimination. Gender justice activists have also demanded that the Department of Education keep publishing its list of schools under investigation for Title IX violations, as it began doing under Obama, as well as its public list of schools that have asked for exemptions from Title IX on religious ground.

DeVos is unlikely to be sympathetic to these pleas. The DeVos Urban Leadership Initiative, the nominee’s family foundation, has given large sums to the ultra-conservative Alliance Defending Freedom. That group is currently bringing a legal challenge against Obama’s guidance on protecting trans students. DeVos herself has given $10,000 to the Foundation for Individual Rights in Education, which is working to repeal the stricter guidelines the Department of Education set forth on campus sexual assault under Obama.

Whether or not DeVos gets the job, Trump could loosen up the department’s rules for Title IX compliance. There are nearly 300 OCR investigations of alleged Title IX violations started under Obama that are still open; Trump and his education secretary can choose to close these investigations or judge the results by a completely different set of benchmarks. Since the Republican Party has called for the government to stop telling universities how seriously they should take rape accusations, Trump and Congress will most likely direct funding away from Title IX enforcement, hobbling the department’s capacity to investigate and report on discrimination in schools. The president could also pull the “Dear Colleague” guidance in favor of a directive that focuses on the rights and well-being of accused rapists, telling colleges to require a higher burden of proof than “preponderance of the evidence.” Trump could also revoke the guidance that protects trans students under Title IX, meaning trans students could still sue their schools for discrimination, but the Department of Education wouldn’t back them up.

One small measure of hope for Title IX advocates can be found in Trump’s Supreme Court nominee, Neil Gorsuch. As a judge on the 10th U.S. Circuit Court of Appeals, Gorsuch was part of a 2007 panel that unanimously affirmed a former University of Colorado student’s right to sue the school for violating Title IX. The student alleged that she was sexually assaulted by a group of football players and visiting recruits; Gorsuch and his two fellow judges agreed that the university had ignored several other similar complaints and evidence that its football recruiting practices were encouraging sexual violence. After hearing about a pattern of sexual assault in the football program, Gorsuch’s panel wrote, the school “did little to change its policies or training. … It responded in ways that were more likely to encourage than eliminate such misconduct.”

If Gorsuch is confirmed, he’ll be on the bench to rule on whether Title IX gives transgender students the right to use the appropriate bathrooms in their schools. Gavin Grimm, a trans boy who was denied access to the boy’s room at his Virginia public school, is arguing that the Obama administration’s guidance on Title IX should protect him from discrimination at school. This will be the first case solely focused on trans rights the Supreme Court will have heard in its entire history. More than 20 states are also in the process of challenging that Title IX guidance on trans students. If the Trump administration pulls that guidance, U.S. attorneys will no longer defend it, and the multistate case won’t make it to the Supreme Court.

There hasn’t been much concrete going on besides the DeVos nomination to grasp onto yet, but advocates are already preparing to fight for the Title IX protections the Obama administration advanced. Aides for Rep. Jackie Speier, D-California, who has made sexual assault one of her major issues in Congress, told BuzzFeed she’s getting buy-in from fellow House members for a potential working group on sexual assault and Title IX issues. Speier also has plans to reintroduce legislation that would give students another avenue to sue schools for poor handling of sexual assault cases.

And if there’s a silver lining to having an alleged sexual predator as president, it’s that the public is likely to pay closer attention to any executive actions that make it easier for people to get away with sexual assault. “I don’t need to remind the president-elect that on this particular issue, he has a bit of a credibility gap because of his reputation,” Lisa Maatz of the American Association of University Women told Inside Higher Ed. “Whatever he wants to do, the changes he proposes will surely be viewed with some healthy skepticism, and we hope he will be sensitive to that.” But if a man who’s reiterated his support for sexual abuse time and time again can make it to the head of the federal government, who’s going to stop him from remaking the executive branch to reflect his misogynist worldview? Speaker of the House Paul Ryan was “sickened” by the president’s remarks about grabbing women by the genitals; Rep. Jason Chaffetz said the remarks upset him because he has a teenage daughter. If party-line Republicans want voters to believe they’re offended by talk of sexual assault, they could start by staying strong against people who commit it.