Due Process or Transgender Protection on Campus?

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Wendy McElroy
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College campuses have long been battlegrounds between due process for those accused of sexual misconduct (innocent until proven guilty) and legal privileges for alleged victims who many automatically believe (guilty until proven innocent).

The front line is Title IX, the 1972 federal law designed to curb sex discrimination in schools. President Joe Biden’s Department of Education (DOE) wants to add gender identity to the mix. The players in this renewed conflict are Senator John Kennedy of Louisiana, who has introduced a bill to champion due process rights on campus, and Biden’s DOE, who is expanding the definition of discrimination.

The specific issue addressed by the DOE is athletic eligibility. The issue is a political flash point that revolves around the question, “Should transgendered male-to-females compete in women’s sports or is their strength advantage unfair to biological females?” This article examines the competing and overlapping provisions of the draft Title IX regulation, the 2023 draft sports regulation, and Kennedy’s bill.

The Biden executive order 14021 (March 8, 2021) that sparked the current conflict is entitled “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, including Sexual Orientation or Gender Identity.” It is a statement of intent. On April 6, 2023, the DOE rolled out an implementation mechanism for the executive order “Proposed Change to its Title IX Regulations on Students’ Eligibility for Athletic Teams.”

The language in the 116-page document is confusing and vague, but the core of it redefines terms such as “discrimination” and favorably includes gender identity into the framework for athletic eligibility. The opening summary states that the DOE will “set out a standard that would govern a recipient’s adoption or application of sex-related criteria” that might “limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity.” This regulation presumes transgendered athletes are able participate in their chosen categories unless the school identifies safety reasons to not allow this.

Backlash from progressives has been swift. The “Proposed Change” is insufficiently protrans, they claim. “These regulations specify methods schools may employ to determine a student’s sex, including invasive physical examinations,” complains the transgender journalist Erin Reed.

Moreover, the DOE document would give school districts the final say on whether injecting gender identity into athletics is problematic. Progressives react with horror. Actually, this is no issue at all. As with past DOE recommendations, schools are likely to over comply not only due to the extreme liberal bias on most campuses but also to avoid a catastrophic loss of federal funds. The “Proposed Change” makes this threat explicitly.

And, on the other side, there is a renewed push for due process rights. On March 28, Kennedy introduced the Ensuring Fairness for Students Act that would codify due process protections for an accused into campus Title IX proceedings. It may be the finest due process legislation in decades. And it is timely. Donald Trump’s secretary of education Elizabeth DeVos (2017 to 2021) worked with some success to install traditional legal protections into campus hearings.

Now Kennedy accuses the Biden administration of trying to “roll back fair proceedings on school campuses by making students guilty until proven innocent.” The bill would provide other traditional due process protections, such as written notice of the allegations, objective evaluation of evidence, and cross-examination.

Kennedy’s bill is timely for at least two reasons. First, a few days after the bill was introduced, the Foundation for Individual Rights in Education released its report “Spotlight on Campus Due Process 2022,” which is based on a national survey. Among the findings: 72 percent of universities did not provide timely notice of allegations to those accused of wrongdoing; 60 percent do not assure the presumption of innocence; only 15 percent of institutions guarantee that both accusers and the accused could see the evidence on hand. To the extent DeVos was successful, that progress is being eroded.

Second, the DOE’s “Proposed Change” focuses on transgender eligibility for sports, but this is almost guaranteed to expand into areas like harassment. The inevitability of the expansion is based on several factors, including the wording of Biden’s executive order “Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” Title IX is a broad antidiscrimination measure, not limited to sports. Moreover, the history of Title IX is one of constant redefinition and expansion. Even before the “Proposed Change” is enacted, progressives are pushing hard for more protections.

If gender harassment is included in Title IX, then it will be as subjective and legally vague as past sexual harassment standards which hinged on whether the complainant felt offended. The “Proposed Change” repeatedly prohibits causing “embarrassment” to those who gender identify but nowhere does it define or describe what causes or constitutes embarrassment.

Does it include a refusal to use a complicated and evolving set of self-declared pronouns from “xemself” and “zirself” to “ney” and “zie”? What if a student simply gets them wrong? If the mistake embarrasses a trans person, is it punishable? This provision violates what is called the vagueness doctrine. In constitutional law, a statute is void when it is so vague as to be either unenforceable or incomprehensible to the average person.

One thing is clear: if sexual misconduct expands to gender misconduct, many more people—almost always men—will be accused of abuse. This would further chill free speech on already cold campuses. It would also destroy innocent human beings. Accused violators will be punished, tried, and even expelled with scarlet Ts (transphobic) branded on their academic records. Without due process, Title IX proceedings are kangaroo courts.

People who oppose due process are opposing common decency in the legal treatment of others. With bitter irony, they do so in the name of protecting the vulnerable—in this case, the gender identified. Anyone who needs protection against common decency and truth is not pursuing justice. They want privilege and power. If the voice of reason can still be heard, people need to hear it now.