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How Trump Can Undo Everything Obama Did For Title IX

by Joseph Misulonas

June 19, 2017

Education and Technology:

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Jamie Schwaberow/NCAA Photos via Getty Images

[This week GOOD Sports will be commemorating the 45th anniversary of Title IX.]

In May 2016, the Obama administration, citing Title IX, took the historic step of issuing guidelines that allowed transgender students access to bathrooms and other facilities, like locker rooms, that corresponded to their gender identity. It took the Trump administration just a month to roll back those protections. While this reversal wasn’t entirely unexpected, it has left other civil rights gains made under the banner of Title IX in limbo. Like transgender rights, women’s college sports and protections for victims of campus sexual assault could come under fire during a Trump presidency.

However, not all Title IX protections are equal in the eyes of the law. Regulations that have been in place longer have had time to wind their way through the courts, setting precedents that make them harder for the Trump administration to roll back. But that leaves newer interpretations of Title IX—like the ones enacted by Obama—much more vulnerable to policy changes by Attorney General Jeff Sessions and Education Secretary Betsy DeVos. So to understand what protections are at risk during a Trump administration, you’ve got to know what’s actually in Title IX and the fights it has been through to strengthen its protections.

The Obama administration felt that gender issues were civil rights issues.

Congress passed Title IX of the Education Amendments Act in 1972, which barred government-funded educational institutions from discriminating against students and employees on the basis of gender. Title IX led to greater enrollment of women in higher education, but it is perhaps most widely known for its impact on college athletics. The Office of Civil Rights decided that in order to be Title IX compliant for sports, institutions must satisfy one of three criteria:

1. Athletic participation for each gender is proportional to undergraduate enrollment. If 60 percent of the student body is female, then 60 percent of student-athlete participants should be female.

2. A demonstrated history of continual expansion of athletic opportunities for the underrepresented sex (usually women).

3. Evidence they’ve fully accommodated the athletic interests of women, meaning there is no desire to add any more opportunities through the university.

In 1996, the 1st U.S. Circuit Court of Appeals upheld these three criteria as part of their decision in the case Cohen v. Brown University. Then in 2000, the 5th U.S. Circuit Court of Appeals went a step further in Pederson v. Louisiana State University, saying the proportionality test should be the primary way for schools to prove Title IX compliance. Due to these and other similar court decisions, it would be extremely difficult for the Trump administration to dramatically change how to determine Title IX compliance in athletics.

“From an athletics standpoint, most Title IX laws are pretty well-settled and there’s not a whole lot they can do,” says Daniel Swinton, managing partner of the National Center for Higher Education Risk Management and former administrator at Vanderbilt University with decades of experience dealing with Title IX compliance. “It’s largely a perception issue rather than a regulatory issue. Enforcement isn’t going away. Athletics will continue to chug along.”

Although the Trump administration will need to enforce Title IX compliance in the athletics arena, that doesn’t mean it will be as stringent as before. For example, in 2005 the Bush administration said that colleges and universities could use email surveys to female students to gauge their interest in athletics and use that information to prove compliance. Many Title IX advocates criticized the new rule and said it was an inaccurate and unscientific way to measure demand for women’s sports, and in 2010 the Obama administration reversed that policy and put the onus to prove compliance back onto the university. Considering the current White House’s hostility towards regulations, it’s likely they’ll take a more hands-off approach to enforcement, similar to that of Bush.

“When Obama came into office, there was a sense of security amongst women’s sports advocates,” says Cheryl Cooky, an associate professor of interdisciplinary studies at Purdue University who’s studied inequality in sports for over 20 years. “The Obama administration felt that gender issues were civil rights issues, and civil rights issues were the purview of the federal government. Where I see things going awry, and where we could see a backlash against Title IX, has been in the philosophy espoused by Steve Bannon and others that government shouldn’t be overseeing civil rights and gender discrimination should be a states’ issue.”

Sexual assault and the transgender issue are hot-button topics for social conservatives.

The biggest issue threatened by lax enforcement of Title IX policies is campus sexual assault. In 2011 the Obama administration released a “Dear Colleague” letter that emphasized their belief sexual harassment and violence was protected under Title IX. It also lowered the burden of proof universities needed in order to determine whether a sexual assault occurred to encourage victims to step forward and ensure harsher punishments for offenders. Republicans criticized this move as government overreach and promised to undo it. While the Trump administration hasn’t addressed the issue yet, the reversal of the transgender protections (which originated in a different “Dear Colleague” letter) suggests it could be looming. And if campus sexual assault protections are rolled backed, college athletics will feel the blowback.

“I haven’t seen anything so far that would indicate that athletics are on the administration’s radar,” says Cooky. “That’s definitely not an issue for Trump’s base. Sexual assault and the transgender issue are hot-button topics for social conservatives. So even though sports aren’t in the crosshairs, they might end up being hurt by the collateral damage when other aspects of Title IX are targeted.”

While things may seem dire, there are reasons for hope. Cooky notes that since Title IX’s inception, different administrations have been more or less friendly toward its enforcement, and the protections have persevered through it all. And student activism around Title IX policies, primarily sexual assault and transgender rights, has increased in recent years, and the topic entered the national spotlight. The Trump administration wouldn’t be able to roll back these protections without significant resistance. But activists should realize that with these issues—unlike with the Title IX protections for women’s sports—they won’t have extensive judicial precedent to backstop their efforts. They’ll have to be more vigilant to curb Trump.

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