Biden’s ‘Transgender’ Rule Mandating Schools Treat Biological Males as Females Gets Tested

Just when you thought Virginia’s Loudoun County Public Schools could not get any worse. Now, Biden’s Department of Education has launched an investigation into how the school system handled two 2021 sexual assaults against girls by a boy claiming to be “transgender.” Its investigation of those complaints will force the department to come to terms with the inconsistencies in its own legally suspect expansion of Title IX that mandates biological males claiming to be female be considered the same as biological females under the law.

Title IX of the Education Amendments of 1972—the federal law that guarantees equal opportunities for girls and women in education—states simply: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

In 2020, under the leadership of Education Secretary Betsy DeVos, the Department of Education issued a rule clarifying that Title IX’s prohibition against sex discrimination also included a prohibition against sexual harassment and sexual assault. Many guessed that the rule wasn’t destined for survival under the Biden administration, and they were right.

In 2021, Biden’s DOE issued a notice of interpretation of Title IX, indicating that, in addition to rescinding the 2020 DeVos rule, it would, going forward, interpret Title IX’s sex discrimination prohibition to also include a prohibition on discrimination based on sexual orientation and gender identity. That interpretation would be applied to all aspects of federally funded education programs—including private, sex-separated spaces like bathrooms.  

As a consequence of the DOE’s gender-neutral bathroom policy, a biological male student sexually assaulted a female in the women’s bathroom at Stone Bridge High School in Loudoun County. The assailant was later transferred to a different school in the county where he sexually assaulted another female a few months later. The student was ultimately convicted of criminal sexual assault and was ordered to attend a residential treatment facility until the age of 18.

After an investigation, a Virginia special grand jury published a report in December 2022 about the school system’s handling of the sexual assaults. The grand jury found that “LCPS [Loudoun County Public Schools] administrators were looking out for their own interests instead of the best interests of LCPS. This invariably led to a stunning lack of openness, transparency, and accountability.”

In particular, the grand jury concluded that the superintendent, Scott Ziegler, knew about the first sexual assault but had denied any knowledge of it during a 2021 school board meeting. He was fired shortly after the release of the report.

Now, prompted by a complaint from America First Legal Foundation filed with the DOE’s Office for Civil Rights, the department has launched an investigation into the school system to determine if it properly responded to both incidents of sexual assault, as required by Title IX.

The school system lacked a proper Title IX complaint process, and it did not begin a Title IX investigation until months after both sexual assaults. It did not even have an official Title IX guidance policy (only a draft policy) until 2022. If the school system had had proper Title IX complaint and investigation procedures in place, it could possibly have prevented the second sexual assault.

Title IX is vital to ensure all students—regardless of their sex—receive an equal education. But both victims were denied that opportunity because the school authorities failed to fulfill their duties under federal civil rights law.

Complicating matters is the Biden administration’s proposed Title IX rule change that, among other things, would not only cement a gender-neutral bathroom policy in federally funded schools across the country but also eliminate due process protections for those accused of sexual assault and harassment. Removing all the due process protections created by the DeVos 2020 Title IX rule would mean no live hearings, no introduction of evidence, and no opportunity to be represented by counsel, for example.

DOE’s proposed rule also brings back the single-investigator model, putting all the power in the hands of one unelected bureaucrat who has the power to change the trajectory of a student’s life with the stroke of a pen. In short, Biden’s rule creates, in essence, a “guilty until proven innocent” presupposition, which has the potential to make Title IX even more difficult to follow and administer.

Given the gravity of sexual assault and harassment allegations as an impediment to full and equal educational opportunity, due process protections are important to ensure that accusations are handled seriously and fairly to all parties concerned and that the full truth is uncovered.

However, the Loudoun County Public Schools situation points to something else that might stymie the Biden administration’s grand plans to shoehorn the transgender-rights agenda into existing federal law.

When employed in the trenches of the school bathroom wars, the final Title IX rule could actually work against itself. Specifically, the rule both presumes the guilt of the accused and the entitlement of biological boys and men who claim to identify as women to use women’s bathrooms, including opportunistic, predatory males who are lying and who really have sexual assault or harassment on their minds.

How are schools and colleges going to balance the interest of competing civil rights complaints? If a biological male sexually assaults or harasses a female in a bathroom that’s no longer sex-specific due to the new Title IX rule, and a female files a Title IX complaint—who prevails? According to the Biden administration’s rule, any transgender-identified male is “entitled” to be in that bathroom, but any female is granted the benefit of the doubt in a sexual harassment or assault proceeding.

The DOE’s investigation into Loudoun County Public Schools could be nothing more than a performative formality, but time will tell. What we do know is the unfortunate reality that changes to Title IX put students, mostly young girls, in schools across the country at increased risk of sexual assault and harassment, not to mention of violations of their privacy in intimate spaces. What happened in Loudoun County will most certainly not stay in Loudoun County, and we will all be worse off for it.

The Biden administration has created a bureaucratic nightmare for school leaders and administrators with its new Title IX rule. After resolution of the Title IX complaint against Loudoun County, we may see just how much of a nightmare it is going to be.

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