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Title IX Biden changes cause confusion at the local level

WATERTOWN, Wis. – President Biden’s sweeping changes to Title IX are worrying Wisconsin school board members, who fear the new rules could “throw out” the relationships the school district has built with stakeholders to work together on transgender issues.

A Waukesha County-area school board member, who kept his name and school district private because of the sensitive nature of the topic, told The Post that the new Title IX is a ‘top-down, one-size-fits-all approach’ ” — and plain old bad politics.

For the past two months, school districts in Wisconsin and across the country have struggled to figure out how to implement Biden’s expansive and convoluted Title IX changes.

The Biden administration did not make implementation an easy task. Under the new guidelines, all Title IX sexual-harassment complaints (now called “reports”) for actions that took place before the new policy went into effect on Aug. 1 must be processed under the much less prescriptive 2020 rules — meaning school districts and staff will to have to be trained in both the 2020 and 2024 regulations.

The “2024 final rule,” as it’s called, covers all forms of “sexual discrimination,” extending far beyond the scope of sexual harassment in the 2020 Title IX regulation, let alone the original 1972 law, which prohibited discrimination based on of sex alone.

Under the 2024 final rule, “sexual discrimination” is expanded to include gender stereotypes, gender characteristics, sexual orientation, and gender identity.

It also broadens the definition of unwelcome sex-based conduct and reverses a Trump-era rule outlining procedural protections for those accused of sexual harassment and assault.

These sweeping new definitions mean that students must use bathroom corresponding to their biological sex and using the wrong pronoun (intentionally or not) to describe fellow students may now constitute Title IX violations.

The ordinance, which is fraught with legal complications for districts, is already under an injunction in several states.

And the timing is under scrutiny, too — making these rule changes in April of an election year means that if Republicans take over Congress after November, they won’t be able to easily reverse them during Congressional Review Act.

Twenty-two states joined a trial against the Department of Education, claiming the ordinance is illegal.

Biden’s rule changes to the historic Title IX law will not be easily reversed under a new administration. AP

Last week, in a case brought on behalf of Young America’s Foundation and Moms for Liberty, a federal district judge in Kansas issued an injunction on Biden’s changes in the states of Kansas, Alaska, Utah, Wyoming and every school “visited by members of Young America’s Foundation and the children of Moms for Liberty- members.”

Those schools with students of Moms for Liberty members in Wisconsin are covered by the injunction, which means they cannot implement the policy pending a final decision.

The Post received a memo from Neolaa website that serves as a policy guide to help school districts in several states navigate the evolving legal landscape in education.

It says that under the new guidelines, gender discrimination can include claims of unequal sporting opportunities, discrimination in admissions, discrimination during pregnancy, discrimination in courses in academic programs and retaliation.

Riley Gaines lost the 2022 NCAA 200-yard freestyle championship to transgender William “Lia” Thomas. Getty Images

The scope of the rule change applies, according to Neola, to sexual discrimination in “any setting where the district asserts disciplinary authority.”

This means districts should also examine their cyberbullying policies and whether their athletic code of conduct is “enforced 24/7,” the site warns.

Discrimination based on sex in Title IX athletic programs has received national attention, including from All-American swimmer and five-time SEC champion Riley Gaines, who made headlines for challenging trans participation in women’s collegiate sports.

But Neola notes that these issues will not be addressed until after the election.

The threat hanging over school districts should they fail to comply with this sweeping and complex policy change?

SBAE Executive Director David Hoyt advises school boards to wait to implement the Title IX changes until several lawsuits are settled. SBAE

Legal sanctions or loss of federal funds, which promise a significant impact on cash-strapped school districts across the country.

School Boards for Academic Excellence is building a nationwide network of state-based school board associations focused on academic achievement and empowering parents and students.

SBAE Executive Director David Hoyt told The Post that its members have approached the group about the rule change.

SBAE advises school boards to wait and see how the amendment to the Title IX regulation is decided in court.

In a situation where school districts are under pressure to implement the rule changes now, Hoyt advises districts to implement a policy that “puts parents in the driver’s seat.”

Local school districts, regardless of their resources, will have to comply with the sweeping changes to Title IX. littleny – stock.adobe.com

SBAE’s addendum to the Neola policy notes: “For purposes of Title IX compliance, the Board directs each student’s parent or guardian to declare in writing to the school administration, upon admission, the gender identity of said student.”

That policy would have helped the Sun Prairie School District last year, when an 18-year-old student who self-identified as a girl allegedly walked into a women’s room completely naked and exposed male genitalia to four freshmen showering in their bathing suits.

In response to that case, the conservative advocacy group Wisconsin Institute for Law and Liberty filed a Title IX complaint on behalf of the young female students, who say the school district should have treated the incident as a Title IX violation.

Balancing student rights appropriately is a focus for a school board member from a Milwaukee County district who spoke anonymously to The Post.

The member cited concerns about how school districts will handle and report incidents of sexual harassment under the new ordinance in all situations, including straight-on-straight and straight-on-disability incidents.

One person, the Title IX coordinator for each school district, will be responsible for both investigation and decision-making under the new rules, a “one investigator” model that was prohibited under previous rules.

Sexual harassment happens, the Milwaukee County school board member told The Post, and schools must deal with situations in a healthy and constructive way on a student-by-student basis that takes into account the rights of everyone involved.

Whether the new regulations will allow districts to use that approach is up for debate as districts look to implement the hundreds of pages of Title IX regulation changes.

The problem, the member continued, is that the practical impact of such major changes cannot be known until they are fully implemented.

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