On January 24, students received an email from Associate Vice President for Title IX Gwen Lexow informing them that the college’s Equal Opportunity, Non-Discrimination and Anti-Harassment Policy (EO Policy) had been revised to comply with federally mandated changes to Title IX passed by the 2020 Trump administration.

According to Lexow the biggest impact these federal changes will have on the Bates community is that “in a Title IX situation, we need to go back to a live hearing with cross-examination.”

Accusing U.S. universities and colleges of “stacking the deck against the accused” and of “failing to protect due process” in their handling of Title IX investigations, the Trump administration — according to a fact sheet from the Trump-era Department of Education — had revised Title IX back in 2020 to include the mandate that universities and colleges must use live hearings and cross-examinations for Title IX cases.

In April 2024, however, the Biden administration passed revisions to Title IX that struck down this requirement and gave universities and colleges the option to choose whether or not to use live hearings in Title IX investigations.

In a sudden about-face, a federal judge ruled last month that the Biden revisions are unconstitutional — requiring universities and colleges that receive federal funding to revert back to Trump’s 2020 policies.

To comply with the federal ruling, the college has simply reverted back to its old EO policy, which was in place before Biden’s 2024 revisions.

When asked if they believe whether the new policies will prevent survivors who may otherwise want to pursue a formal Title IX process from filing a Title IX complaint, Campus Resource Advisor Andrew Shepard responded “Absolutely. Absolutely. Absolutely. That’s a reality that comes with a change like this.”

Why are live hearings controversial?

For those who help student survivors navigate Title IX, such as Shepard, the return of live hearings is a step in the wrong direction and has the potential to harm survivors’ mental health and wellbeing.

It can raise “concerns for safety, whether that be physical safety or psychological safety. Being in the same room as someone who has allegedly perpetrated violence could be something that is triggering to someone’s mental health, how they navigate campus, and how they can focus on their academics, which is every students’ primary purpose here,” they explained.

Shepard is not the only person to point out the flaws of using live hearings for Title IX cases.

The National Women’s Law Center—a non-profit organization that works to protect women and LGBTQ+ rights in America—argued that the 2020 Trump Title IX policies’ requirement of live hearings and cross examinations was a “uniquely unfair” and “burdensome” rule “created with the help of ‘men’s rights groups’” and “rooted in deeply offensive stereotypes that label reports of sexual harassment as uniquely less credible than reports of other misconduct.”

Likewise, Lexow described live hearings as a “barrier” and explained that, before the Trump revisions in 2020, the college had already transitioned away from using them in Title IX cases.

The formal procedure under Biden’s policies and before 2020 “followed a very similar format [to the one under Trump’s] except for the last step. Rather than being in a Zoom meeting that’s live — everybody in the same place at the same time —having a cross examination, it’s one-on-one meetings with the hearing officer, who is the decision maker,” Lexow said.

During these multiple meetings with the hearing officer, “the decision maker would be able to ask questions, but the complainant would be able to say, ‘can you ask these questions of these people,’” Lexow added. “And then the hearing office goes back and forth in these individual meetings and exchanges information — rather than it happening in real time at one place.”

Although Bates is now barred from using this more flexible procedure in official Title IX cases, it is still being used for conduct violations that fall outside the parameters of Title IX but that are still covered under Bates’ Equal Opportunity, Non-Discrimination and Anti-Harassment Policy such as “repeated use of slurs or taunts in the guise of jokes” or “unwelcome gestures or physical contact.”

In addition, Shepard explained that live hearings are not the only option for student survivors. Under the current policy, students can pursue informal resolution processes that do not involve live hearings.

Students can also access supportive measures without undergoing a live hearing. While these measures cannot “restrict” another student’s “access to the college,” they can help students take necessary steps such as “moving to a safe part of campus,” Shepard said. More information on informal resolution options can be found on the Title IX and Civil Rights Compliance Office’s website. 

Despite these other options, Shepard explained that many students chose the formal Title IX process because they find it “empowering or liberating, to confront the person that has caused harm to them.”

Under Trump’s vision of Title IX, however, survivors will have to face the potential trauma of a live hearing in order to experience the restorative justice and healing of the formal Title IX process.

Could overturning the Biden 2024 revisions harm LGBTQ+ students?

The 2024 Biden revisions did more than simply end the policy of live hearings, Lexow said in an interview with The Student.

According to Lexow, the Biden administration also expanded the “types of behaviors” that would count as sexual harassment under Title IX by changing its definition.

These changes gave “greater protections to LGBTQ+ students,” Lexow explained, by broadening the definition of sex discrimination to protect students from discrimination based on gender identity and sexual orientation – and not just biological sex.

In response to the ruling, the Department of Education is already taking steps to enforce the 2020 policies and eliminate those passed in 2024, a move that could hurt LGBTQ+ students.

The Department of Education has already rejected Biden’s expansive definition of sex discrimination and stated that it “will return to enforcing Title IX protections on the basis of biological sex in schools and on campuses,” according to a press release from January 31.

Criticizing the overturned 2024 revisions as “a slight against women and girls,” the Trump Administration interprets the 2020 version of Title IX as “protecting women and girls’ right to separate and protected facilities,” according to the Associated Press.

Acting on these beliefs, the Trump Administration has initiated an investigation against a Denver high school for transforming a women’s restroom into an all gender one but maintaining a separate restroom only for men.

“We have argued that Title IX has always protected LGBTQ folks” – Bates Responds

Referencing the Equal Opportunity, Non-Discrimination, and Anti-Harassment Policy that protects students from “the harmful consequences of sexual and gender-based harassment,” Lexow stressed “the protections for LGBTQ+ folks are in our current policy. They’re just not all covered under Title IX.”

According to Lexow, the Trump regulations “are a floor” that only dictate what schools must cover in their EO Policies “but there’s no ceiling necessarily, so we can do more [than what Title IX protects] and we look at that, to say, ‘okay, where might we provide more protection within our policy that does not violate the regs [regulations] in order to feel like we are mitigating some of the harms.’”

In other words, this means that Bates students have all the same protections under the EO Policy that they did before the 2024 Biden revisions prompted Bates to revise its Policy in August.

“A lot of the stuff that was for the 2024 reg[ulations] was actually in our policy in July [before Biden’s revisions took place in August].” Lexow said. “We weren’t required to do it, but we still were doing it. We were still providing protections for [the] LGBTQ+ community.”

When asked to clarify what those protections were, Lexow replied that “we have argued that Title IX has always protected LGBTQ folks. That’s our understanding of the law.”

“We think much more broadly than the Trump administration does about gender and how there are multiple genders, and we will respect that,” Lexow said. “We will respect pronouns, and we will respect chosen names and all of those kinds of things. So, the way we interpret our policy and use our policy is always to extend those protections based on that.”

Returning to the 2020 definition of sexual harassment is another “big difference” in how Title IX protects students, according to Lexow.

Under the Biden 2024 revisions, sexual harassment was defined as an act that is severe, pervasive or persistent and objectively offensive. In the 2020 regulations — or the policy currently in place — sexual harassment must be an act that is severe, pervasive and persistent.

“So in the 2024 policy, it [only] had to be one of those three things. And in the 2020 policy, it has to be all of those things,” explained Lexow.

In practice, this means that some forms of sexual harassment that were covered in the 2024 Biden revisions will no longer be protected under Title IX.

Lexow argued, however, that the college’s EO policy can still protect student survivors who are no longer protected by Title IX if student reports fall under Bates’ definition of discriminatory harassment.

As for whether the Trump administration may try to impose further restrictions on Title IX, Lexow said, “I don’t know. I’ll be honest, I don’t know what’s coming.”

Lexow and Shepard stress, however, that they will always support students — regardless of what a Trump presidency may hold in store for Title IX.