Topic: Title IX
“With its Notice of Proposed Rulemaking published on July 12, 2022, the Biden Education Department seeks to gut the hard-earned rights of women with its changes to the department’s regulations implementing Title IX, which prohibits discrimination on the basis of sex in educational programs and activities. Instead, the Biden Administration has sought to trample women’s and girls’ athletic opportunities and due process on campus, threaten free speech and religious liberty, and erode parental rights in elementary and secondary education regarding sensitive issues of sex.”
This is thinly veiled transphobia. She’s so desperate to discriminate against trans people that the assertion “prohibiting discrimination based on sex has trampled women’s rights” just came out of her mouth. Wow. Just no.
Full contextual analysis of Section 3.2: Department of Education here.
“Commence a new agency rulemaking process to rescind the current Administration’s Title IX regulations; restore the Title IX regulations promulgated by then-Secretary Betsy DeVos on May 19, 2020; and define “sex” under Title IX to mean only biological sex recognized at birth.”
Well, not everyone HAS a “biological sex recognized at birth.” This claim is science denial at work. Experts estimate that up to 1.7 percent of the population are born with intersex traits, which can mean anatomy, reproductive organs, hormone patterns, and/or chromosomal patterns that do not fit binary notions of “male” or “female.” They’re somewhere in between. 1.7% of the population is about the same amount as people who have red hair. Do you know a redhead? Then you likely know a person with intersex traits, whether they’re aware of it themselves or not (have you seen your own chromosomes? I haven’t.)
Burke is arguing here for federally sanctioning discrimination against people who cannot help their chromosomal, physical, and hormonal makeup. This isn’t a new thing. The conventional wisdom, if the characteristics of being intersex are noticed at birth, is to leave the person alone until they’re old enough to know how they identify, then allow them to live as they wish. As recently as the 1960’s, these people were called “hermaphrodites”, and doctors would simply assign them a sex at birth and perform a surgery to match their genitals to the sex chosen, then their parents would raise them accordingly. Since penises were harder to manufacture or surgically engineer, most infants with intersex characteristics were simply made as feminine as possible and then raised as biological girls. This, as you can imagine, screwed people up. Here’s some history on that. (Or you can look up David Reimer.)
Full contextual analysis of Section 3.2: Department of Education here.
“The Trump Administration’s 2020 Title IX regulation protected the foundational right to due process for those who are accused of sexual misconduct. The Biden Administration’s proposed change to the interpretation of Title IX disposes of these rights. The next Administration should move quickly to restore the rights of women and girls and restore due process protections for accused individuals.”
This is a GROSS misrepresentation (and I do mean gross.) In 2020, the Trump administration introduced changes to Title IX that focused on protecting the due process rights of individuals accused of sexual misconduct. These regulations included the right for the accused (and the accuser) to have a live hearing with cross-examination, a requirement that behavior be “severe, pervasive, and objectively offensive” to qualify as sexual harassment, and rights for both parties to receive written notice of the allegations, access to the evidence, and an equal opportunity to present their case.
The Biden administration has proposed (not imposed) revising Title IX regulations, potentially shifting the focus back to a broader interpretation of what constitutes sexual harassment and misconduct. The intent is to make it easier for victims of sexual harassment and assault to report incidents and receive support. Burke has made it clear that she does not consider terrorizing transgender students “objectively offensive”, considering she’s trying to codify into law their federally sanctioned discrimination and abuse, so this rollback would simply be in service of that.
And let’s discuss what “severe” and “pervasive” mean in this context. If a person, say, grabs someone by the pussy, but it was only once, and not in a severe manner, does that not count as sexual harassment under the Trump Administration’s interpretation? Do we not find that “objectively offensive”?
Full contextual analysis of Section 3.2: Department of Education here.
“At the same time, there is no scientific or legal basis for redefining “sex” to “sexual orientation and gender identity” in Title IX.”
False. There is absolutely a scientific basis for it including gender identity. See above. As for it not including sexual orientation, this is an argument she’s making for legalizing discrimination against LGBTQ+ students as well. (And there IS a legal basis for it – it’s called the Civil Rights Act of 1964, an examination of which resulted in the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, which held that the word “sex” in Title VII includes sexual orientation and gender identity.) Sounds like Burke is just mad about the ruling. In any case, the ruling was significant because it extended protections under federal law to LGBTQ+ individuals, ensuring that they cannot be fired, denied a job, or otherwise discriminated against at work simply because of their sexual orientation or gender identity. Burke is arguing for going back to discriminatory practices here.
She even mentions Bostock in the next sentence, saying that redefining “sex” to include sexual orientation and gender identity in Title IX regulations “misrepresents Bostock.” It doesn’t. In fact, it’s completely aligned with the spirit of the ruling; she’s just a bigot. (FYI, Bostock was more specifically about discrimination in employment, not in schools, but the point stands.)
Full contextual analysis of Section 3.2: Department of Education here.
“On its first day in office, the next Administration should signal its intent to enter the rulemaking process to restore the Trump Administration’s Title IX regulation, with the additional insistence that “sex” is properly understood as a fixed biological fact. Official notice-and-comment should be posted immediately.”
“Day one, we’re going to start legalizing discrimination!” No, sex is not a “fixed biological fact.” See above. Just for fun, here’s a link about the Guevedoces, which, roughly translated, means “penis at twelve.” The Guevedoces are a small community in the Dominican Republic where some males are born looking like girls and subsequently grow penises at puberty, when their testicles also descend. Most were brought up as girls until this happened to them. [Source]28 The world is a vast and complicated place, and very little about it is a “fixed biological fact.”
The next few pages are simply blatant racism, which doesn’t bear repeating. Suffice it to say, Burke’s goal is to effectively legalize discrimination of all kinds in K-12 schools. At one point, she even sneers that “the media will see this as an attack on civil rights.” Yes. And rightfully so.
Full contextual analysis of Section 3.2: Department of Education here.
Educational institutions can claim a religious exemption with the Office for Civil Rights at the Department of Education from the strictures of Title IX. In 2016, the Obama Administration published on the Department of Education’s website a list of colleges that had applied for the exemption. This “list of shame” of faith-based colleges, as it came to be known, has since been archived on ED’s website, still publicly available. The President should issue an executive order removing the archived list and preventing such a list from being published in the future.
Apparently, religious schools could always apply for Title IX exemptions to be bigots if they so desired, but they were published on a “list of shame” for doing so. Burke mandates eliminating this list, therefore reducing transparency about which higher education institutions applied to be legally racist/sexist/transphobic. If I were going to pay good money for an education, I think that’s something I’d like to know about the schools I’m considering.
Full contextual analysis of Section 3.2: Department of Education here.