Biden's new Title IX rules bring back 'kangaroo courts.' They will hurt, not help, women.

President Joe Biden often appears confused these days. So maybe it shouldn't come as a surprise that his major rewrite of Title IX , finally released this month after multiple delays, makes it clear he has zero understanding of why the law exists. 

Title IX is the education civil rights law Congress passed in 1972 that demands schools receiving federal funds ban discrimination in programs and activities "on the basis of sex." It’s a straightforward measure that was ground-changing for women and their access to school sports. 

Not anymore. 

Since 2022, the Biden administration’s Education Department has worked to respond to a record 240,000 public comments and finalize new rules that undermine the whole point of the law. 

I spoke last week with former Education Secretary Betsy DeVos, who spent years during the Trump administration trying to make Title IX fair for all students – and to ensure that schools upheld students’ constitutional rights.

To put it mildly, DeVos is not pleased that Biden has erased all the positive changes she and her team made, and she argues he has introduced troublesome new ones. 

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Title IX will now 'actually harm' women 

One thing that DeVos and others are concerned about is Biden's decision to redefine “sex” to include gender identity – something Congress has not done. 

This change will allow for transgender students to choose which bathrooms and locker rooms they want to use and which athletic teams they wish to play on. It will pose both privacy and fairness concerns for female athletes – the same young women the law was originally supposed to help. 

“Title IX as we know it was passed more than 50 years ago, and its sole purpose was to give women equal opportunities and over time the focus of that centered around sports,” DeVos told me. “And with this Biden rewrite, it really does turn the tables and position the law to actually harm women by extending the definition of biological sex to include gender identity.”

While the Biden administration sidestepped a separate, more controversial provision that would have prohibited schools from banning transgender athletes, DeVos believes the language in the final rules will force the same outcome. 

Biden’s rule lands at an awkward time, as professional and collegiate associations tighten their rules on transgender participation in women’s sports. A group of women athletes earlier this year also sued the NCAA under Title IX for forcing them to compete against transgender swimmer Lia Thomas. 

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And a Gallup poll last year found that nearly 70% of Americans do not support transgender athletes playing on teams that match their current gender identity.

So Biden’s Title IX rewrite seems out of touch with what most of the country wants. 

Due process stripped from campus courts 

The new rules also remove due process from campus sexual assault investigations and return the policy to troublesome Obama-era guidance. 

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It’s ironic that Biden wants to use a civil rights law to deny students – usually male ones – their right to a fair hearing if they’ve been accused of sexual misconduct. An accusation of wrongdoing should not equate to guilt. 

DeVos says the new policy will force colleges to go back to “campus kangaroo courts,” which didn’t offer impartial justice and led to dozens of lawsuits – most of which the schools lost on due process grounds. 

“That was a core piece of the rule that we put forward to really correct all of the wrongs that the Dear Colleague Letter resulted in" during the Obama administration, DeVos said. 

“And this notion that we're going to go back to what they call a single-investigator model, where one individual, usually someone who has a very left-leaning agenda of their own, is opening the investigations, doing the investigative work, deciding the outcome, and no one else is involved," she said. "That is simply unfair and unjust. And it can't and won't stand, ultimately.”

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If you're skeptical of DeVos’ take, consider that the ACLU has similar concerns (as do others). 

The ACLU said it opposes several aspects of these changes, including that universities are not required to “provide a live hearing and an opportunity for cross-examination where serious sanctions, such as suspension or expulsion, may apply.”

The legal rights group is similarly concerned that schools can once again use the single-investigator model, “where a single person investigates a complaint and makes the decision about the outcome.”

'There's going to be a real backlash'

These aspects of the new rules are bad enough. There are many others, too, laid out in the more than 1,500-page tome. 

For instance, a change expands the definition of “harassment,” which could mean students face disciplinary action if they use another student’s wrong pronoun. Speech that should be protected under the First Amendment also could get caught up in this. 

And the new set of rules is written in a way that discourages schools from informing parents about what their children – even young ones – are choosing to do at school in relation to their gender identity. That’s a huge blow to parental rights.

These final regulations are effective in August, but numerous groups plan to challenge them in court. And DeVos is hopeful that through the Congressional Review Act, Congress could step in to rescind the changes. 

More than anything, though, the former Education secretary wonders why Biden upended Title IX in the first place.

“The question is why anyone felt there was a need to change what we had done in the previous administration around this rule,” DeVos said. “It was working well.” 

She said Biden is “pandering to the far left fringe” of the Democratic Party. 

“And I think when it really sinks in with the American people, there’s going to be a real backlash,” DeVos said. 

Let’s hope so. 

Ingrid Jacques is a columnist at USA TODAY. Contact her at ijacques@usatoday.com or on X, formerly Twitter: @Ingrid_Jacques.