Sarah Parshall Perry’s Insights on Title IX Reforms

The following is an edited transcript of a recent interview between Daily Wire editor-in-chief John Bickley and Heritage Foundation senior legal fellow Sarah Parshall Perry on a Saturday Extra edition of Morning Wire. They discuss the Biden Administration’s sweeping changes to Title IX and the damaging implications for female and male athletes.

JOHN: Joining us now to provide a deep dive into the changes to Title IX made by the Biden administration is Heritage Foundation senior legal fellow Sarah Parshall Perry. Sarah, thank you for joining us.

SARAH: Happy to be here.

JOHN: So, there have been some major developments with Title IX rule changes that are seismic in their potential. There are also a lot of misconceptions around what’s been changed and what hasn’t been changed. Can you walk us through the changes to Title IX?

SARAH: So, they have changed the entire function and applicability of a law that’s been around for more than 50 years that simply prohibits sex discrimination in any federally funded education program. And that means a dollar of federal funding received, whether directly or indirectly. And the most seismic change, and the first that most people think of, is that they have expanded the definition of sex to include not just biological sex, but distinctions between gender identity, sexual orientation, pregnancy or related conditions, which includes abortion, and any sex or gender expression.

Now, you can see in a law that’s been around since the early 1970s exactly how seismic that transformation is. Because what was passed as sort of the crowning jewel of achievement for the feminist movement is really going to upend the equality of women and girls all across the country in every single education program that accepts so much as a dollar of federal funding.

What they’ve also done is change the process for investigations of sexual harassment or sexual misconduct on college campuses. Under this administration’s rule we’ve now gone back to what’s called the single investigator model. We like to call these lovingly — or not so lovingly — kangaroo courts. Which is to say that a single unelected college bureaucrat, many of whom are just out of college or grad school themselves, gets to determine whether or not an individual who is charged with sexual assault or sexual harassment has actually committed that offense. And not only are they no longer allowed to have what we considered standard due process protections — the right, for example, to be represented by an attorney, cross examine, introduce evidence, that has disappeared — now we have gone from a clear and convincing standard to a preponderance of the evidence standard, which is about 51%. So one person gets to determine the future of an individual’s educational and career opportunities and could essentially make a determination that would leave a mark on this individual’s future academic record for all time.

Then, on top of everything else, as if that was not bad enough, this new process is actually going to shoehorn “speech codes,” which we know are unconstitutional, into every publicly funded education program. Because now — and this is out of the mouth of Catherine Lhamon, Assistant Secretary for Civil Rights just on Friday — if you misgender someone, you can be subject to a Title IX complaint for sexual harassment under their new guidelines. So they’re forcing in an unconstitutional speech code.

So, to say that the application and the upending of the way we have understood education to operate for more than 50 years is seismic, is certainly not an overstatement.

LISTEN: Catch the full Morning Wire interview with Sarah Parshall Perry

JOHN: There’s obviously a lot to unpack here. First of all, when you say federally funded educational programs, what all does that include?

SARAH: So I think a lot of people believe immediately that Title IX is simply what they call the athletics rule and that it only applies to public universities or public colleges, when in fact this applies to everything from Head Start preschool programs to K-12, to private colleges, private charter schools, no matter whether your institution is private or public. If it accepts, for example, an individual on a reduced lunch program, or someone on a Pell Grant or federally funded student loans, your institution, your program, your organization, even trade schools are going to be subject to this particular rule.

Well, you can imagine now that that means even for educational institutions that don’t, for example, have athletic programs, it still applies to everything from bathrooms, to locker rooms, to housing accommodations, to speech codes, no matter how much federal funding is actually involved. So, to say that this applies to the vast majority of institutions is absolutely accurate. Many people think, well, it’s just athletics and it’s just for the big NCAA schools. That’s entirely a misunderstanding of the rule. The application here is going to be just about every educational program in the country.

JOHN: So, to be clear, if you do not abide by these rules, your federal funding is stripped.

SARAH: Absolutely. The federal government has an opportunity to perform what’s called a directed investigation. That means that they go in and determine if the sex discrimination provisions that are claimed in a complaint have actually transpired. And they will give an educational institution an opportunity to defend themselves, but they make very clear that if you do not adhere to their definition of sex to include gender identity, you are automatically subject to disciplinary action from the federal government.

JOHN: Let’s unpack the gender identity element a bit more. What are the implications of these changes?

SARAH: Oh, it’s hard to overstate them. This actually comes down to a single sentence in the Education Amendments of 1972, of which Title IX was a part. And all it says is that discrimination in any federally funded program on the basis of sex is prohibited. So you can see how expanding that to gender identity could be catastrophic. Because, in fact, as a program, as a law designed to ensure women and girls equality in all federally funded education, by expanding that to gender identity, it’s going to be significant. We’re going to see it applied through any institution up, down and sideways.

Congress had a chance to amend sex to include gender identity in 1987 when it reauthorized the law under the Civil Rights Restoration Act, but it chose not to do so. And the law itself is actually the result of more than 250 versions of bills that went back and forth between House and Senate committees. This was long deliberated, long debated, and was the result of quite a number of stakeholders weighing in. So to say you can pluck from thin air a definition of sex to include gender identity from thin air is really disingenuous and we’re hoping ultimately that a federal court will strike it down.

JOHN: And changes like this would include men being allowed to participate in women’s sports, men being allowed into women’s locker rooms and join their clubs, sororities, is this correct?

SARAH: Absolutely. And in fact, the administration has disavowed that this rule touches, impacts, or includes sports. But again, having been on a stakeholder call with Catherine Lhamon, the Assistant Secretary for Civil Rights, just a few days ago, she was asked a direct question. Is the Department of Education continuing with rule making on Title IX’s Athletics Rule? Remember, there were two rules, one proposed in 2022, the more vast of the two rules, and the Athletics Rule proposed in summer 2023. She completely dodged the question, instead responding that she was quite pleased to be introducing today’s rule.

Well, I have done a thorough reading of the 1,500 page rule, there are 31 references to athletics within the actual text of the new rule prohibits gender identity discrimination in any extracurricular activity. Well, you can imagine sports are an extracurricular activity. So to say that it doesn’t include sports is really very duplicitous on the part of the administration. So we can assure all of the individuals interested in this issue that sports are going to be included.

JOHN: Now, you said sexual orientation, pregnancy status, and abortion also come into play. Can you unpack those ramifications for us?

SARAH: The sexual orientation issue may have some salience here because in the end we’re looking distinctly at underlying sex as being the divider between providing equal opportunity for men and women. Quite frankly, for years, Title IX has already worked in such a way as to protect biological women, regardless of their sexual orientation or biological men, regardless of their sexual orientation.

The pregnancy and related conditions, however, is a brand new application. Ultimately, what it’s going to do is provide the colleges in particular — because we’re seeing these rates of unplanned pregnancy increase as these individuals get into college — t’s going to require universities, colleges, higher education institutions to actually make accommodations for students who want to have an abortion. And we’ve yet to see how this is going to play out in actual practice, but as recipients of federal funding, it could include a requirement that they provide abortion services free of charge to the student.

JOHN: That could raise a whole series of other questions, of course. Can you unpack how it will change the way schools handle accusations? And what did it reverse from the Trump administration?

SARAH: Under the Trump administration, we wanted to make very sure, first of all, that sexual harassment was included distinctly as a form of sex discrimination under Title IX. We wanted to make sure that those individuals were included and protected. That’s a responsible sort of inclusion here — one that is directed at a pattern or a practice of conduct of which the school decided they weren’t going to get involved and solve.

We also made sure that these individuals had as close to a judicial security of due process protections as we might see in, for example, a courtroom. We wanted to make sure that in these investigations taking place on college campuses, that they would have, for example, the right to be represented by counsel or the right to cross examine a witness or the right to introduce evidence, things that we would see in an ordinary civil proceeding in an actual courtroom.

All of those rights, however, have been stripped away by this rule. Which means that any individual, after a regretful decision one night, could accuse another of having engaged in sexual assault without that individual’s opportunity to do anything but sit there, listen, and ultimately make the case for why the other accusing individual is wrong.

Now that we’ve gone back to the single investigator model — these are not tribunals or disinterested stakeholders or individuals working together to come up with the right answer the way a jury would — we are left with an individual college Title IX administrator. That person gets to serve as judge, jury, and executioner, and determine whether that individual’s testimony is true or false. And an accusation of sexual assault under Title IX is a mark that will distinctly follow them through the rest of their educational and professional career.

It also does not call for, as our previous rule did under the Trump administration, the involvement of local authorities for simultaneous criminal investigation. If these individuals have something they’ve experienced, that they believe is tantamount to sexual assault, we want to make sure local authorities are also involved so that a non judicial and a criminal investigation can be performed simultaneously. That is how we help determine the veracity of what people are saying when they make very damning accusations. We don’t want to weight the scales against any one party. But if, in fact, an individual has been sexually assaulted, we want to make sure that they’re not only getting collegiate and educational redress, but they’re getting legal redress as well.

JOHN: Final question. You mentioned the original Title IX rules were established after hundreds of iterations plus congressional involvement. Now we’ve got bureaucrats making a unilateral decision with massive sweeping implications. What are the hopes for reversing some of this? Who can make the changes? Is it the courts? Is it Congress?

SARAH: I think there’s an opportunity for both. What happens next is that this rule has just been probably hand-delivered to both the House and the Senate chambers, in addition to the Governmental Accountability Office. Now the clock starts running on 60 legislative days, and within those 60 days, both chambers have an opportunity to mount what’s called a Congressional Review Act challenge, and either chamber may, by a two-thirds vote, down vote or disapprove of the law. That would have the effect of essentially stalling the rule.

It also goes to the president’s desk, while the current president is in office, and because of his stated missions to, among other things, protect trans communities, it is very likely that he would veto that Congressional Review Act challenge. When that becomes the case, it would be finalized for publication in the Federal Register. The enforcement date, according to the rule itself, will be August 1st of this year, conveniently (or not so conveniently), in terms of application for the new 2024-2025 school year.

But the opportunity for public interest litigators or attorneys general to bring suit on behalf of individuals who have standing who have experienced discrimination under this new rule — people impacted by, for example, forced speech codes, misgendering, or female athletes losing roster spots to biological men — they will have an opportunity to bring legal action in the hopes of getting a preliminary injunction. That would essentially have the effect of suspending the law before the beginning of the school year. And while it works its way through the courts, it would go through a series of volleys on a litigation basis between both parties against the Department of Justice and the attorneys general or the private individuals bringing suit.

Ultimately, though, I think the end game is going to be the Supreme Court’s disposition. They have eschewed many of these gender identity issues for a long time. They’ve had to sort of deal with the progeny of the 2020 Bostock vs. Clayton County decision related to protections for sexual orientation or gender identity within employment but this is distinctly different. At some point, the Supreme Court is going to have to determine if indeed, as the drafters and the founders and the ratifiers of Title IX meant in 1972, that sex does mean biological distinctions between male and female.

JOHN: So you think in the end the courts will settle this. But as you said, even if two-thirds of Congress rejects this new rule change, President Biden can just veto that decision.

SARAH: Absolutely. But I think it’s an important characteristic of both legislative chambers to exercise their discretion to flex their muscle and to recognize, as a representative body, that this is not in keeping with congressional history or the plain, ordinary text of the law itself. And we know that there are certainly people in both chambers who have already indicated to us and others that they are ready to mount a Congressional Review Act challenge.

JOHN: I would assume that may play into future court rulings too. They might cite the will of Congress as part of the rationale.

SARAH: And it will be notable in an election year. Those people who are exhibiting the character and steel spine to be able to stand up to what I believe is a craven political ploy to pander to a hard left progressive base in an election year. Those people who are willing to stand up and vote “no” are going to be, I believe, very surprised by the election outcomes in the fall.

JOHN: Sarah, thanks so much for coming on.

SARAH: Thanks for having me.

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