3 Title IX policy fights take center stage at Lhamon's nomination hearing

Catherine Lhamon was in charge of the Education Department’s Office for Civil Rights during President Barack Obama's second term, when key Title IX documents were issued.Chip Somodevilla/Getty Images

Republicans grilled Catherine Lhamon Tuesday over the future of the DeVos-era Title IX rule and transgender students rights during her nomination hearing to reprise her role as the Education Department’s top civil rights official.

Lhamon has the backing of several education and civil rights organizations and Senate HELP Chair Patty Murray, who said "she proved herself as a champion for all students through her work to protect students’ civil rights, combat sexual assault, and more."

But, critics say that if confirmed, Lhamon will “decimate” the rights of students accused of sexual misconduct and urged Congress to ensure that processes like cross-examinations and live hearing stay in place if she takes office.

Sen. Richard Burr, the top Republican on the Senate HELP Committee, said Lhamon’s “history is deeply troubling if not outright disqualifying,” opening the door to other Republicans to pile on.

Lhamon was in charge of the Education Department’s Office for Civil Rights during President Barack Obama's second term, when key Title IX documents were issued. Republican lawmakers have long criticized the guidance, arguing it circumvented the formal rule-making process and public input.

At her hearing Tuesday, conservative lawmakers pressed Lhamon to commit to keeping “due process” proceedings like cross examination and live hearings in the Title IX rule, which is being overhauled by the agency. Republicans also accused Lhamon of being “lawyerly” in her responses.

“It doesn't go unnoticed that you have repeatedly answered on this side of the aisle that you're really not in control, that there's a process,” Burr said of Lhamon’s answers on Title IX. “But when you answered over there [to committee Democrats], your answer was, you accept that you will have authority and responsibility for policy and recommendations made by your office — it can't be both ways.”

Despite the guidance issued under Obama, Burr said he hopes that if Lhamon is confirmed she will choose a regulatory path that includes public comment.
Title IX guidance and rule overhaul

Republicans largely pointed to Title IX guidance issued on Lhamon's watch that included threats to federal funding if a school didn’t comply, which Burr said was beyond the scope of her authority.

“Ms. Lhamon bullied schools into complying with guidance by telling them that they could lose federal funding — the ultimate punishment that has rarely been used — if they did not abide by guidance documents, saying and this is a quote, ‘do not think it’s an empty threat,’” he said.

Sen. Susan Collins also pressed Lhamon, saying that “at your interview with the HELP committee staff, you stated that you do not believe that accused people should necessarily have them right in all instances to know the evidence being used against them.” She also called out the lack of mention for cross examination in 2014 guidance Lhamon issued while in office.

Lhamon said her guidance did not prohibit cross examination, and it did direct that if there was a hearing, “there should be parity as between accused students and complainants.” The guidance also “strongly discouraged” students participating in the cross examination, which is allowed under the new rule.

“I'm really excited about the opportunity to participate in the regulatory process,” Lhamon told lawmakers. “I didn't have that opportunity when I led the Office for Civil Rights in 2013 to 2017. When I came that time, the regulatory agenda was largely set.”
Enforcing DeVos’ Title IX rule

Sen. Bill Cassidy had a tense exchange with Lhamon over whether she would enforce the Trump administration’s Title IX rule that was finalized last year and remains in effect.

The Louisiana Republican pointed to Lhamon’s tweet from last year that said: “.⁦@BetsyDeVosED⁩ presides over taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity. Today’s students deserve better, including fair protections consistent with law.”

Cassidy pressed Lhamon about whether she would “defend something which you say gives permission to rape and sexually harass students with impunity.”

Lhamon noted that ED is actively evaluating the rule. “The regulation permits students to rape and sexually harass with impunity," she said. "I think that the regulation has weakened the intent of Title IX the Congress wrote.”
Transgender student athletes

“I'm getting more letters on Title IX and this transgender problem than anything," said Sen. Tommy Tuberville (R-Ala.).

“We've got to keep young girls interested in sports, that's why we started Title IX,” the former college football coach said. “Now we're letting transgender athletes dressing in the same dressing rooms, using the same restroom.”

Lhamon said she “could not countenance discriminating against any student in context of Title IX.” She also said she is willing to work to find a way to find “a way not to discriminate against the student who is unusual, not to discriminate against a student who wants to be on the team, who wants to get the benefits of athletics, and to be able to make sure that the Title IX protection … applies to every single student on the team.”

Sen. Chris Murphy (D-Conn.) later shot back at the questions on transgender students’ rights to play on sports teams that match their gender identity, saying the intent of the questions isn't really to protect female athletes.

“The number of female athletes that are going to be impacted by high-level transgender athletes is fairly infinitesimal,” he said. “Much of this agenda really is unfortunately about trying to marginalize these kids.”