The White House announced today that President Biden will nominate Catherine Lhamon to serve as the Department of Education’s Assistant Secretary for Civil Rights — the same position from which she oversaw efforts to undermine the due process rights of students accused of sexual misconduct during the Obama administration.
Under Lhamon’s leadership, the Office for Civil Rights enforced guidance that gutted due process protections and violated the First Amendment. Lhamon used that guidance to pressure institutions to restrict constitutionally protected speech and disregard basic procedural protections in campus disciplinary hearings.
By putting forward Lhamon for this crucial role, President Biden has signaled that he would rather colleges go back to old, failed policies — policies that have earned rebukes from dozens and dozens of courts to date — than pursue Title IX policies that take the rights of all students into account.
Biden has long defined his political career on protecting women, but his accomplishments have a mixed legacy.
The Violence Against Women Act of 1994, which he shepherded through Congress, has since faced feminist scrutiny for treating domestic violence as a law enforcement issue, which may have ironically reduced reporting of abuse.
Reauthorization language for VAWA has also been criticized for watering down the definition of domestic violence and incentivizing romantic partners to lie. Feminist Wendy McElroy, who lost sight in one eye from domestic violence, warned that the language represents the “criminalization of normal life,” including common squabbles in relationships.
Joe Biden has claimed that President Obama specifically tasked him with devising policy on campus sexual misconduct before they were elected in 2008. As vice president, Biden compared supporters of due process for accused students to the “Nazis” who marched in the Charlottesville “Unite the Right” rally.
The White House issued an executive order March 8 directing Education Secretary Miguel Cardona to review its predecessor’s Title IX regulation “for consistency with governing law” by the end of April.
All “agency actions” must follow President Biden’s policy that “all students should be guaranteed an educational environment free from discrimination on the basis of sex,” including sexual harassment, the order said.
One of the first acts of Joe Biden’s presidency was to gut sex anti-discrimination laws and eliminate critical protections for women in the federal government. On Wednesday afternoon, only hours after being sworn into office, Biden signed an executive order that “builds on the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020) and ensures that the federal government interprets Title VII of the the [sic] Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity,” according to the Biden transition team website.
The order also ensures “that federal anti-discrimination statutes that cover sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity.” Federal civil rights offices will also be required to enforce this interpretation in any matter that comes before them, likely including siding against women’s rights in court cases.
With this action, Biden is bypassing the legislative process to implement the most controversial provisions of the Equality Act—changing the definition of sex in federal anti-discrimination regulations so that female people are no longer a discrete class with protected status under the law. As we predicted, the new administration is relying on the Bostock decision to do so.
This executive order directs federal agencies to do two things. First, federal agencies are now required to interpret “sex” as also including “sexual orientation and gender identity” in their own internal regulations and workplace policies. Second, agencies are directed to perform a comprehensive assessment of all regulations under their purview, and create a plan with 100 days to “revise, suspend, or rescind such agency actions, or promulgate [propose] new agency actions” that will impose this interpretation onto all American employers, institutions, and individuals, with no exceptions.
The Supreme Court was clear at the time of the Bostock decision that the ruling was only meant to be applied to hiring and firing discrimination under Title VII of the Civil Rights Act, in advancing their novel reasoning that “transgender status” meant that a male employee should be allowed to identify into the otherwise lawful sex-based rules for female employees. While we strongly support protections from discrimination based on sexual orientation, the Biden administration has grossly expanded the application of the decision with far-reaching implications for women’s rights in nearly every aspect of public life, including Title IX.