Trump likely to change regs protecting against sex-based discrimination in schools

Susan Dunlap, New Mexico Political Report

This article was originally published by New Mexico Political Report.

President-elect Donald Trump is likely to return the regulation, Title IX, that protects against sex-based discrimination, to previous rules which could harm LGBTQ individuals and survivors of sexual assault in educational settings.

Considered landmark 1972 legislation, Title IX has been the target of extremists, Shiwali Patel, National Women’s Law Center senior director of Safe and Inclusive Schools, told NM Political Report. Consequently, in 2020, the Trump administration set new Title IX guidelines which placed more barriers for students who allege sexual assault or harassment and reversed decades of policies protecting against sex-based harassment.

The Biden administration unveiled new regulations in April that reversed course on Trump’s 2020 rules and expanded protections in many important ways. Trump said on the campaign trail that he has expressed plans to undo Biden’s new rules, Patel said. 

In addition, Project 2025, the far-right policy agenda written by the Heritage Foundation, “laid clear a plan for a hostile administration to immediately begin the process to undo the regulations that Biden finalized in April,” she said.

The 2024 regulations expanded protections for transgender and gender nonbinary students to allow them to use the bathroom of their gender and to expect their preferred pronouns and names to be respected within their educational environment.

Patel said Project 2025 announced plans to not investigate claims based on sexual orientation and gender identity. Patel said such nonenforcement of the regulations will likely be met with legal challenges.

“For years Title IX has been a target of extremists. And so, we do expect that these regulations will be a target of the Trump administration and that they’ll reverse course as soon as they can and go further and explicitly deny the existence of trans and gender nonbinary students and deny them critical protections under Title IX,” Patel said. 

Sexual assault survivors

Elena Rubinfeld, legal director for New Mexico Coalition of Sexual Assault Programs, said she doesn’t want to speculate on what the future Trump administration might do to Title IX.

But she did say that the Trump 2020 regulations created more barriers for survivors to report sexual assault or harassment that had the potential to retraumatize the survivor. She said the 2020 regulations set a higher bar for schools to determine an investigation necessary while, at the same time, lowered the bar in terms of response. Under the 2020 rules, schools had to respond only if the school had actual knowledge of the alleged incident and administrators could not be deliberately indifferent, Rubinfeld said.

The 2020 rules made a one-time incident of sexual assault or harassment more challenging to evaluate, she said. Biden’s 2024 rules changed the language so that more incidents could be investigated. 

One of the more controversial aspects of the 2020 rules for sexual assault survivors were the live hearings. The 2020 rules mandated that the person who investigated the complaint then turned over the evidence to another school official who heard evidence and testimony, with both the survivor and the alleged perpetrator present, similar to a live court hearing. Rubinfeld said that process had the potential to intimidate some survivors not to come forward or, if they did, facing the accused and reliving the experience could be retraumatizing. Rubinfeld said that adding the live hearing aspect also slowed down a process that was already slow beforehand.

Another change in the 2020 rules included that only a high-ranking employee of a school could report an incident, whereas the Biden 2024 rules required training of all school employees so that if a student confided to a lower ranking employee, the employee would know to offer to report it or inform the student how they could do so.

The 2020 rules also required a student to report an incident in writing only, whereas the Biden 2024 rules allowed a student to report either orally or in writing.

Rubinfeld said even small changes such as giving students options in terms of how they report an incident that is so painful is a way of eliminating barriers to reporting.

Under the Biden 2024 rules, the bar is lowered in terms of what is required to trigger schools to provide support services to a survivor. The Trump 2020 rules set that higher.

Rubinfeld said the Trump 2020 rules also created deterrents for schools to investigate an alleged incident that happened off campus or within the study abroad program. The Trump 2020 rules also deterred alumni from reporting an incident that happened while still a student. Rubinfeld said that kind of rule causes harm because, so often, a survivor does not report right away but might seek resolution later in life.

Trump also made it harder for LGBTQ individuals to report sex-based harassment or assault. Rubinfeld said the 2020 rules lack explicit language talking about gender discrimination. When the Biden administration changed the rules in 2024, a really important piece he added to the regulations was explicit language making clear that repeat misgendering and not allowing access to the bathroom of one’s gender identity could be interpreted as forms of sex-based harassment, Rubinfeld said. 

Overall, the Trump 2020 rules, “gave more rights to the person accused,” Rubinfeld said.

Rubinfeld said that, even if the regulations change after January 2025, schools can “get creative” and incorporate the 2024 Title IX rules into their own school policies. 

“What these rules say, whatever might be determined, sends a message to campuses. They can create a culture where students and staff feel unsafe and othered. But schools can say that’s not our culture and not our values and ensure no one on campus experiences discrimination,” Rubinfeld said. 

Erasure

Adrien Lawyer, cofounder of Transgender Resource Center of New Mexico, said, when asked about Title IX, that the first Trump administration deleted the acronym LGBTQ from all federal websites in the first few months of taking office in 2017. 

“It was a really thorough deletion of anything helpful to us that wasn’t established law. They’ll probably do that again,” Lawyer said.

Michael Trimm, executive director of Transgender Resource of New Mexico, said the far right have been able to create battlegrounds out of Title IX offices and school boards because of their rhetoric about harm to children, which gets to the core of every parent who is caring for a child, instead of recognizing it as a form of discrimination.

“Everyone loves their kid. If you say my kid is not safe, I’m not listening to anything else,” Trimm said.

Susan Dunlap is a reporter for New Mexico Political Report.