During Thursday’s Senate Health, Education, Labor and Pensions Committee, Sen. Josh Hawley (R-MO) questioned nominees about student civil rights and title 9 discrimination.
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00:00It's not just about the benefit to foreign students, it's a benefit to the United States, to our global competitiveness.
00:05Is that something you would agree to?
00:06Yes.
00:07Okay, thank you. With that, I'll yield back.
00:09Thank you. Senator Hawley.
00:12Thank you, Mr. Chairman. Congratulations to the nominees. Thank you for being here.
00:16Mr. Chief, I could just start with you. I just want to clarify something that you said to Senator Baldwin a moment or two ago.
00:21She asked you about OCR investigations into alleged cases of discrimination on the basis of gender identity under Title IX.
00:34And you said, I think, I'm looking at our quick transcript of your remarks.
00:37I was sitting here. I just want to make sure I heard it correctly.
00:40You said that the OCR, Department of Ed OCR, would investigate alleged cases of gender identity discrimination.
00:50Why is that?
00:51Thank you. Thank you for the question, Senator, and for the opportunity to have a detailed discussion about it.
00:57So in 2017, OCR clarified that transgender students, that students who bring allegations forth based on sexual orientation and gender identity,
01:08were protected from harassment under Title IX.
01:12Sex stereotyping, a very narrow set of cases, applied to protect students on the basis of sexual orientation and gender identity.
01:20That was back in 2017. Following the Bostock case, OCR had to step back and determine how Bostock applied to Title IX cases.
01:29There are a lot of reasons it didn't apply, and I can walk through those because they're significant.
01:33But what OCR finally determined is that because of the holding in Bostock, that Bostock could inform OCR's evaluation of complaints that allege discrimination on the basis of sexual orientation identity to determine if they involve biological sex, which is consistent with the Bostock opinion.
01:55So what we held is that Bostock could inform some limited sect of OCR cases pertaining to different treatment, pertaining to harassment, pertaining to bullying.
02:07But we drew a hard line at universally accepting Bostock to apply to all Title IX cases.
02:15What we said is that because the Supreme Court said that biological sex was not relevant in the termination of those employees in Bostock, that we would also look at the relevance of sex in our cases.
02:27And what we determined is that sex is relevant in certain instances, sex is relevant with regard to restrooms, sex is relevant with regard to locker rooms, and sex is relevant with regard to athletic teams.
02:39So it was a very nuanced approach.
02:41But sex is not gender identity, and the Bostock decision is Title VII.
02:46The Supreme Court specifically reserved the question of whether or not it applied to Title IX.
02:49Justice Gorsuch is very clear on this.
02:52Now, the Biden administration didn't heed that warning at all, as you know.
02:55Yes, sir.
02:55They subsequently issued guidance that attempted to rewrite Title IX completely.
03:00Yes.
03:00That guidance has been enjoined nationally by courts because it is utterly inconsistent with the text of Title IX.
03:07Indeed, as you know, it completely upends it.
03:09It reads Title IX to say that women's sports cease to exist, that a biological man, if he wants to be in a woman's sport, go for it.
03:15In a woman's locker room, fine.
03:17It's so outrageous that I think almost every court that has considered it has enjoined it.
03:22I agree.
03:22So, okay, I just want to be sure that you're not going to follow the Biden administration's interpretation of Title IX, surely.
03:29No, sir.
03:29The Biden administration universally accepted Bostock and arguably exceeded, right, went even further, I think.
03:35No, not arguably.
03:36And the Bostock opinion, that is not what we did under President Trump's first term, and that is not what we will do under President Trump's second term.
03:43Good.
03:43Okay.
03:44I just want to be crystal clear on this.
03:46I think it's a very dangerous thing to start allowing this into Title IX, which is, you know, it is a landmark statute.
03:56It is vitally important.
03:58And it has been under attack for four long, very long years where we have seen women's sports, women's leadership opportunities, women's safety eliminated in many cases.
04:09And now, of course, one of the challenges you're going to face is you've got a host of colleges and universities who are openly defying not just this administration.
04:16They're defying court orders.
04:18I hear a lot of talk from my friends over here on this side of the dais about the need to follow court orders.
04:21We've got a whole bunch of colleges and administrations that are defying court orders and saying, well, we don't care.
04:26We're going to have biological men in women's sports no matter what.
04:28We're going to have biological men in women's locker rooms no matter what.
04:32Surely you're going to go after that, are you not, and protect the women on campus?
04:35Yes, sir.
04:36The current leadership with NOCR and Secretary McMahon, as you know, is prioritizing these cases, and that will not stop under my leadership if I'm fortunate enough to assume this role.
04:45Good, and I want to be on the record to back to your regulations both in 2017 and 2020.
04:51I think you might want to rethink those.
04:52I mean, in light of subsequent jurisprudence and in light, frankly, of subsequent experience, I think you want to take a really hard look at how you're interpreting gender identity and the interface.
05:02We've had some, there's some water under the bridge now, and the interface with biological sex and just how that's being used to undermine the rights of, it's never the rights of men.
05:11It's always the rights of women 100% of the time, and I think we've got to be very careful about that.
05:15My time has expired, and the chairman, I'm such a good citizen, I never go over, so I'll just submit some questions for the record.
05:21For you, Dr. Schwinn and others, congratulations to all of you.
05:23Thank you, Mr. Chairman.
05:24Thank you, Senator Haley.
05:26This is Senator King.