Opinion | Trump administration’s Title IX changes hurt survivors

Let’s rewind to 2011. I am 13 years old, covered in Dr. Pepper Lip Smackers and sequins, about to tell freckle-faced Patrick that I’m in love with him and want to have his pudgy babies — wait, I’m getting off track. I’ll tell you about my love life later — what’s more important is that in 2011, the Obama administration’s Department of Education released a “Dear Colleagues” letter.

Title IX existed before this letter, of course — Congress created it as part of the Education Amendments of 1972. But Obama’s letter was a call to action to remind universities of their responsibility to protect students according to the amendments, as controversy over sexual harassment cases — particularly those involving college athletics — was rampant at the time. In this letter, the Obama administration lists “unwelcome conduct of a sexual nature” that includes “requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature” as examples of behavior that constitute sexual harassment. The Equal Employment Opportunity Commission, a federal agency that enforces civil rights laws, uses this same language. This definition set the stage for the coming years of how universities handled — and largely mishandled — cases of sexual assault. But as of last Wednesday, this definition has changed.

The Trump administration published “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.” These new regulations change multiple rules regarding what is viewed as sexual assault and how it is handled on college grounds. The changes that this document has set into motion are incredibly harmful to survivors of assault, mainly young women, and will privilege a misogynistic legal system that often protects white men over everyone else. The mere change in the definition of what constitutes sexual harassment will have wide-reaching, chilling consequences.

The new regulations read:

“Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
(1) An employee of the recipient conditioning the provision of an aid, benefit or service of the recipient on an individual’s participation in unwelcome sexual conduct;
(2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
(3) ‘Sexual assault’ as defined in 20 U.S.C. 1092(f)(6)(A)(v), ‘dating violence’ as defined in 34 U.S.C. 12291(a)(10), ‘domestic violence’ as defined in 34 U.S.C. 12291(a)(8) or ‘stalking’ as defined in 34 U.S.C. 12291(a)(30).”

At first glance, this doesn’t seem so harmful. We’re specifically including dating and domestic violence to fall under a university’s jurisdiction — that’s great! But the issue here is the precise wording. Every single word here counts.

Compared to the Obama administration’s language, this new definition is much stricter when it comes to pinning down what exactly harassment can be. While the Obama definition is broad enough to include any “unwelcome conduct of a sexual nature,” the Trump administration has now defined sexual harassment as being exclusively quid pro quo, or “so severe, pervasive and objectively offensive that it effectively denies a person equal access.” Any formal complaint that doesn’t fall under these definitions could legally be disregarded and thrown out.

This is not OK. Imagine the field day the accused and their lawyers are going to have with this. Finding definitive proof that someone raped you is hard enough, but now there’s further a burden of proof on survivors — if they’ve been harassed “severely” but not “pervasively,” their case can be thrown out. If they’ve been harassed “pervasively” but not “severely,” their case can be thrown out. If the treatment they’ve been subjected to isn’t deemed “objectively offensive,” their case can be thrown out.

These changes in definition mean the accused will likely play these words to their advantage — under the words “severely,” “pervasively” and “objectively offensive,” lower-level sexual assault could be disregarded. Lower-level offenses can be just as harmful to survivors’ abilities to feel safe in educational spaces. These new regulations effectively disregard that.

Harvard Law School professor Janet Halley agrees.

“We argued that ‘severe and pervasive’ is very bad, because in the conduct realm, it is too narrow,” Halley said. “It says, ‘If it’s severe but not pervasive, it’s not included in the wrongful conduct. Or if it’s pervasive but not severe.’”

Other experts feel the same.

“These new rules require the presumption of innocence, and thereby, the presumption that an accusing student is lying,” Colby Bruno, senior legal counsel for the Victim Rights Law Center said. “It is discriminatory to assume this standard for sexual harassment, but not for other types of student misconduct.”

And this is the harm that just the definition change will have. There’s even more danger hidden in these rules. In Section 106.45(b)(6)(i), the regulations say that colleges must “provide live hearing with cross-examination.” The rules also exclude the necessary inclusion of trauma-informed investigation procedures that were present under the Obama administration. These two changes will detract survivors from coming forth in a landscape where they already rarely come forth. The cross-examination requirement privileges rich students who can pay for the best lawyers, and without trauma-informed investigation procedures, the psychological impact that trauma can have on survivors’ ability to recall information could be disregarded.

These regulations will take effect Aug. 14. Many have called out the Trump administration, and Education Secretary Betsy DeVos, for not only the content of the new regulations, but for the regulations being published at this moment in time.

“Our education system is facing an unprecedented crisis,” Democrats on the House Committee on Education and Labor said. “But instead of focusing on helping students, educators and schools cope with [COVID-19], Secretary DeVos is eroding protections for students’ safety.”

Sage Carson, manager of Know Your IX, agrees.

“Betsy DeVos and the Trump administration have shown, once again, that they have no interest in supporting student survivors and their rights,” Carson said. “The final rule makes it harder for survivors to report sexual violence, reduces schools’ liability for ignoring or covering up sexual harassment, and creates a biased reporting process that favors respondents and schools over survivors’ access to education.”

These are only some of the changes made to Title IX regulations, whose effects will reverberate for years to come. The impacts will be more severely felt by survivors of color, survivors with disabilities and LGBTQ+ survivors. These new rules also weaken the liability schools face — they now will not be held accountable for off-campus sexual assault at activities not affiliated with the school or other similarly nuanced situations.

These new regulations are a spit in the face to sexual assault survivors. As a survivor of sexual assault myself, I am appalled at this administration and its actions. My assault would not fall under Trump’s new guidelines, yet it for sure has hindered my ability to fully take advantage of my education, to feel safe around people both on campus and off. Apparently my trauma isn’t valid enough. This administration doesn’t care about due process — they care about silencing women.

Genna Edwards writes about culture, the media and gender politics for The Pitt News. You can email her at gee9@pitt.edu.