The Department of Education has issued a new proposed rule that would weaken the responsibilities of schools to students experiencing sexual violence and make it harder to get justice for survivors, especially transgender and nonbinary students — like I once was.
Title IX prohibits discrimination on the basis of sex, which includes any gender-based violence or harassment like sexual misconduct. Under the proposed changes to Title IX, schools would be allowed to presume that reported harassment did not occur, ignore actions that happen off-campus, and be permitted to disregard reported harassment until the school thinks the victim has been denied equal access to education.
That means that if a student reported being harassed by a fellow student off-campus or online, administrators could potentially turn a blind eye to a report until the victim is willing to drop classes or withdraw from school. Schools would also be allowed to use a higher standard of proof than they use for other types of student misconduct, further isolating victims of sexual assault and signaling society’s unwillingness to believe them.
Nearly one in four transgender, genderqueer, and gender nonconforming students have experienced sexual assault during college or graduate school, compared to one in 10 of all college and graduate students. The rates are even higher for transgender students of color, who will be disproportionately impacted by these rule changes.
When I experienced sexual violence related to my gender identity in college, I wasn’t protected under Title IX as a transgender student. It wasn’t until 2016 when federal courts and the Departments of Justice and Education clarified that schools and colleges must protect transgender students. But in 2017, those departments withdrew that guidance.
I often think about what would have happened if I had reported my assault. I chose not to for a host of reasons, including that I wasn’t sure how to advocate for myself and my fear I would have to share that I was nonbinary and my school would do nothing to protect me. For transgender or nonbinary students seeking to report an assault to the Department of Education, they must essentially misgender themselves in order to be protected by the law.
LGBTQ students, and especially trans and nonbinary students and students of color, are already less likely to report sexual violence because of stigma. I remember hearing rumors that the Title IX coordinator at my school blamed a cisgender female student when she reported being harassed by a professor. How could they ever understand my situation?
If I had chosen to report my assault, at least I wouldn’t have gotten kicked out of school. Under the new rules, LGBTQ students could be expelled for reporting if their institution uses religion to refuse to enforce Title IX’s protections. Under the current system, religious schools and colleges have to send a letter to the Department of Education claiming specific exemptions from Title IX’s nondiscrimination provisions, allowing them to discriminate against LGBTQ and other students in admissions, housing or financial aid. But under the proposed rule, religious schools would not have to send that letter and could claim exemptions after the discrimination has already occurred, leaving students not knowing whether their school can legally discriminate against them if they come out or report sexual assault or harassment related to their LGBTQ identity.
These religious exemptions go hand in hand with other recent rules that have sought to allow health care workers to refuse care to transgender people or people seeking reproductive health care. This rule is just another mechanism to reduce people’s power over their own bodies and their own lives, and the impact will be devastating.
The Trump administration has also recently indicated that it plans to redefine the word “sex” under Title IX as biological and immutable, erasing the existence of transgender, genderqueer and gender nonconforming students. If these two proposed rules are implemented in tandem, transgender students could lose even the limited avenues for reporting and relief the new sexual harassment rules provide.
This rule can be stopped. The public — including students who may be impacted — have until Jan. 29 to submit comments opposing the changes. All students deserve equal protection and education, and they need to be able to trust that their schools will listen to, believe, and support them — no matter their identity.
Bridget Schaaff is a fellow at the National LGBTQ Task Force.