Plus, what was Hamas's goal on October 7?
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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Today's read: 11 minutes.
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Quick hits.
- House Democratic leadership said they will vote to table any motion to remove House Speaker Mike Johnson (R-LA) brought by Rep. Marjorie Taylor Greene (R-GA), who has said she will trigger a vote to remove Johnson next week. (The comments)
- The U.S. Drug Enforcement Agency (DEA) announced plans to reclassify marijuana as a less dangerous drug. (The move)
- Riot police at both UCLA and Columbia University clashed with student protesters who continue to occupy encampments and university buildings in protest of the war in Gaza. (The response)
- Eight regional newspapers sued OpenAI and Microsoft for copyright infringement yesterday, continuing the battle between news outlets and generative artificial intelligence companies. (The lawsuit)
- Amid ceasefire negotiations, Israeli Prime Minister Benjamin Netanyahu vowed to invade Rafah, the town in Gaza’s south, “with or without” a hostage deal. (The promise)
Today's topic.
Biden's Title IX changes. Earlier this month, the Biden administration released new Title IX rules designed to protect LGBTQ students and reversed a number of Trump-era policies related to how schools can respond to allegations of sexual assault on college campuses or in K-12 schools.
Reminder: Title IX is a 1972 law prohibiting discrimination on the basis of sex in educational programs that receive federal funding. Title IX states that "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." One of the law’s lasting impacts has been improved funding and promotion of women's sports at the collegiate and high school levels.
Now what? The Biden administration released new rules that go into effect on August 1 to broaden the scope of Title IX. The new rules extend the law to prohibit discrimination based on sexual orientation or gender identity and expand the range of sexual harassment complaints schools are responsible for investigating.
Under the new rules, a transgender student’s subjection to a hostile environment through bullying or harassment (including being repeatedly referred to by a name or pronoun other than the one they have chosen) or exclusion from programs or facilities based on gender identity could trigger an investigation by the Department of Education's Office for Civil Rights. The administration cited as justification Bostock v. Clayton County, a landmark 2020 Supreme Court case in which the court ruled that the Civil Rights Act protects gay and transgender workers from workplace discrimination.
However, the administration avoided the issue of whether transgender students should be able to play sports in divisions corresponding to gender identity. Instead, the Education Department is pursuing a different rule to deal with sex-related eligibility for male and female sports teams.
The new rules also modified the way schools handle allegations of sexual harassment and assault. The Trump administration codified provisions under Title IX that bolstered due process rights for accused students while reducing the legal liability of schools. Those rules also laid out parameters for how schools should conduct impartial investigations.
The Biden administration attempted to strike a middle ground between Trump-era policies and Obama-era policies, which called on schools to ramp up investigation into sexual assault complaints or face federal funding cuts. Those policies had long been criticized for being unenforceable, however, as students affected by them were successfully able to sue colleges for violating their due process rights.
Now, the newest rules provide schools flexibility in conducting investigations while also broadening the kinds of actions they can investigate, including those that didn’t occur on campus.
The challenges: More than a dozen states are challenging the changes to Title IX, arguing that they overstep the president's authority and undermine Title IX's own anti-discrimination laws restricting bathroom and locker room access.
Today, we’re going to explore some arguments about the latest changes from the left and right, then my take.
What the left is saying.
- The left generally supports the new rules, with many praising the provisions creating new protections for trans students.
- Some argue they don’t go far enough to protect victims of sexual assault.
- Others say conservatives’ reaction to the laws is overblown.
The Bay Area Reporter editorial board suggested the updated policy “will help trans students.”
“Key to the new rule is the Biden administration's view that sex discrimination includes discrimination based on gender identity as well as sexual orientation. This, of course, is opposed by conservatives, many of whom have continued pushing to ban LGBTQ-themed books from schools and forcing students to use facilities based on their sex assigned at birth, rather than their current identity,” the board wrote. “It is in this context that the new final rule will help LGBTQ students.”
The provisions “make clear that Title IX covers harassment and discrimination based on sexual orientation, gender identity, and sex stereotypes; restores the long-standing ‘severe or pervasive’ standard for sex-based discrimination; and requires schools to investigate instances of student-on-student harassment or assaults that occur off campus where they affect students' access to education. This last one is important because there are lots of reports of such off campus incidents, whether online or in person,” the board said. “The new rule should be welcomed by students and educators alike.”
In The Nation, Ray Epstein said the new rules “leave sexual assault survivors in the lurch.”
“The new Biden rules have modified the protocols governing assault testimony in line with trauma-informed models of cross-examination—yet they remain woefully silent on the growing legal backlash against victims of sexual assault who testify,” Epstein wrote. “The US legal system has always assumed that cross-examination of a witness is the most effective tool for revealing false accusations. But scientific research shows that this is simply not true in situations where the witness has suffered a trauma.”
“Friday’s revised Title IX regulations, at least in part, attempt to address this nuance… However, a closer look reveals that the regulations suffer from a damaging omission: They do nothing to counter the growing threat of defamation actions against Title IX complainants who give evidence under this modified form of cross-examination,” Epstein said. “The short-term impact of the new Biden rules will deliver much-needed support to sexual assault victims who are vulnerable to retraumatization as they give evidence for their claims. But without the added assurance that their testimony is immune from retaliatory defamation actions, the longer-term effects of the new policy could prove catastrophic.”
In Chalkbeat, Erica Meltzer and Kalyn Belsha criticized Republican states’ challenge of the new laws.
“For LGBTQ youth whose rights have been under attack by Republican state officials, new federal regulations protecting them from discrimination at school were a welcome sign that someone in power had their back,” Meltzer and Belsha wrote. “The lawsuits highlight an ongoing culture war centered on the rights of trans students at school. Republican states have passed a host of laws limiting trans youth’s participation in sports, which bathrooms these students can use, and which names they can go by.”
“The bulk of the concerns in the lawsuits focus on trans girls being permitted to use girls’ bathrooms and locker rooms, and that school staff will be compelled to call trans and non-binary students by their preferred names and pronouns… But the Title IX rules make clear that schools can still maintain single-gender restrooms,” Meltzer and Belsha said. “Practically, the new rules matter because they give students, families, and advocates sturdier ground to stand on when they file a federal civil rights complaint or a lawsuit seeking to challenge a school’s policy.”
What the right is saying.
- The right opposes the new rules, framing them as backward policies that will harm students, particularly women.
- Some say Biden is bending the law to advance his political agenda.
- Others worry that the rules will stifle free speech across the country.
In City Journal, Ilya Shapiro said the new guidelines are “bad for women, free speech, and due process.”
The rule “is based in part on the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which said that protections against sex-based discrimination in employment apply to gender identity and sexual orientation,” Shapiro wrote. “That legal argument is highly questionable. First, the Bostock majority stated that ‘we do not purport to address bathrooms, locker rooms, or anything else of the kind.’ Second, ‘gender identity’ is nowhere defined in the new rule, but the conflation of sex and gender contradicts Title IX’s understanding of sex as biological and binary—regardless of whether your preferred theory of statutory interpretation elevates text or purpose, or even legislative history.”
“Even as the new rule explicitly disclaims any impact on athletic teams, jurisdictions are still empowered to allow biological males to play in women’s and girls’ sports or to use their intimate facilities without violating Title IX. Title IX thus no longer protects female-only sports and spaces,” Shapiro added. “The rule aims to inculcate radical change in American society, replacing women’s equality with far-left gender theory. It’s bad law, bad policy, and a continuation of a broader shift from education to activism, with the empowerment of political commissars and bureaucrats over parents and educators.”
In Newsweek, Teresa Manning argued Biden “is weaponizing Title IX to promote fringe sexual politics.”
Former Secretary of Education Betsy DeVos “spent three years developing and promulgating a new Title IX rule that protects both complainants and due process. That rule was upheld as fair and lawful by every court to review it,” Manning wrote. “Tragically, Biden's regulation will undo these gains. It allows schools to investigate sexual harassment claims with an ‘individual meeting method’ similar to the ‘single investigator model’ used under the DCL, which resulted in all the due process disasters and lawsuits. In effect, Biden is eliminating formality, including live hearings at colleges, while increasing the discretion and power of Title IX staff.”
“The redefinition of sex to include ‘gender identity’ means that males claiming to be female and wanting to use women's locker rooms, or play on women's sports teams, can now claim that Title IX gives them that right. Ironically, women's athletics only exist in their present form, especially at the college level, because Title IX was interpreted decades ago to mandate not just equal athletic opportunity but equal funding for female sports programs,” Manning said. “The Biden rule represents the administrative state run amok: Activist agencies get an inch, then take a mile to make novel policy.”
In The American Conservative, Cherise Trump wrote “Biden’s new Title IX rule is the beginning of the end for free speech.”
“Despite the fact that expressing and debating views and ideas is fundamental to the American system… many universities prefer to shut down speech, punish students for merely asking questions or stating basic facts, and enforce a dogmatic approach towards all political speech. At the same time, they embed their preferred political speech in all aspects of student life,” Trump said. “Similarly, the Biden administration does not want to wait for the end result of the traditional American way—debate and discourse that seeks truth through reason, and ultimately settles on a conclusion based on core constitutional principles.”
Under the new rules, “the speech only has to ‘limit a person’s ability to benefit from….’ Unlike the previous Rule’s ‘effectively denies a person equal access…’ phrasing, this means anyone can file a Title IX claim, even when they have equal access to education,” Trump said. “Other countries like Canada already have similar laws regarding the use of pronouns… Biden’s Title IX Rule is the first step in that direction—the beginning of the end of free speech in America.”
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.
- These changes can be put in two categories, but I think both have legal issues.
- On the LGTBQ discrimination, I think the administration is overly applying the legal precedent from Bostock.
- On the sexual assault protections, I think it is allowing for gross violations of due process.
As many of the commentators above noted, there are two key elements here: First, the rule changes that are aimed at addressing LGBTQ discrimination, and then the rule changes meant to address how sexual assault reports are handled on campus. I'll take them in that order.
On LGBTQ discrimination: First, it should be noted that a large chunk of the rule updates seem genuinely good and non-controversial. If you read the Education Department’s five-page fact sheet, you’ll see requirements "to respond promptly and effectively to all complaints of sex discrimination with a fair, transparent, and reliable process that includes trained, unbiased decisionmakers to evaluate all relevant and not otherwise impermissible evidence." Not exactly as headline grabbing as “The Beginning of the End of Free Speech.” Most of this stuff is just an added layer of protection for students who want to report discrimination or harassment.
Of course, in this moment of rabid culture war, the focus is on the rules expanding Title IX to cover gender identity. Effectively, these rules open the door to civil litigation if a school prevents someone from participating in sex-separate activities consistent with their gender identity. This is by far the most controversial part of the rule changes, as it redefines Title IX's understanding of sex from something “biological and binary” (as Ilya Shapiro put it under "What the right is saying") into something individually defined.
I think the Biden administration is genuinely attempting to provide legal recourse to students who are being discriminated against or bullied because of their gender identity. But the updates are messy. For instance, it's true the rule changes don't give any blanket instruction on how schools must handle thorny issues like transgender students participating in athletics (which I think is good — those rules should be made by the governing bodies of individual sports), but it does open the door for trans students to sue schools if they believe they are being excluded from spaces that they feel they should be able to access based on gender identity alone.
The legal argument the Biden administration used to buttress these changes is Bostock v. Clayton County, the Supreme Court ruling that barred sex-based discrimination in employment and applied that standard to sexual orientation and gender identity. Yet the majority in that ruling explicitly noted (on the 35th page of this pdf) its ruling did not apply to issues of sex-separate spaces like bathrooms or locker rooms. And most crucially, the Biden administration did not define gender identity anywhere in its rule, leaving the most important element of all this open for interpretation and legal challenges.
Those challenges are piling up quickly, and I suspect at least a few of them are going to stick. If any make it to the Supreme Court, I'm doubtful these justices are going to let such vague redefinitions of Title IX stand.
On sexual assault reporting: The updates to how colleges can address allegations of sexual harassment or assault seem like an attempt to find a middle ground between Obama-era and Trump-era rules, but on the whole strike me as a dangerous reversion to what we had a decade ago. On the one hand, I like that the administration is giving some power back to schools and states to decide how to approach these issues; what I've read from educators seems to indicate that they’ll benefit from having some flexibility. All schools have different resources and should be given some wiggle room in how they investigate, adjudicate, and punish harassment or assault allegations; all states have different laws about navigating these allegations that schools have to follow.
But that doesn't mean some sort of baseline standards aren’t appropriate. And I’m nervous about removing the ones that Betsy DeVos and the Trump administration put in place.
By far my biggest concern is the removal of due-process standards that protected against the “single-investigator” model for adjudicating sexual assault claims. This model is incredibly controversial among due process advocates, and for good reason: It allows one person (often a Title IX or DEI coordinator) to hear, investigate, and then rule on claims of sexual harassment without any oversight. There is no world where a single person should be the judge, prosecutor and jury, with the power to expel a student or label them as a sex criminal for life — yet these changes re-open the door for that possibility on campuses across the country.
I don't want to be misinterpreted here: The data we have suggests sexual harassment or assault is rampant in colleges and goes under-reported. Addressing that, and protecting the women and girls who are most often victims of that harassment or assault, should be an Education Department priority. But we can't strip away the fundamental rights of the accused while we do — not only because the accused have rights but because it can open the door to retaliation against the accusers (as Ray Epstein said under “What the left is saying”). There is a reason so many accused students have won lawsuits for having their due process rights violated, and it's that the system we had was deeply flawed.
Lastly, one thing stuck out to me while researching this piece: There were far more columnists on the right writing about this than columnists on the left. And I think I see why. Despite the delays, public commenting period, and resources the Biden administration put into developing the changes, on net they seem problematic, ill conceived, and likely to be struck down with legal challenges. With any luck that will force the Biden administration to course-correct and improve the rules, but instead this all seems more likely to lead to heightened legal ambiguity and culture war division.
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Your questions, answered.
Q: I have not seen this addressed anywhere yet, but it seems important: Just what did Hamas intend to accomplish with their initial attack that started this war? Why that day? Why that place? What specific goal did they expect to attain? All that followed has been extensively analyzed but not the initial reason for it. Do you know?
— ConVon from Vallejo, California
Tangle: As Tangle readers already know, we have covered the conflict in Gaza extensively, and in many different ways. But most of our analysis relates to Israeli citizens, Gazan citizens, the Israeli government, or even the United States government. We haven’t gotten into very much detail on the motivations of Hamas, which are difficult to discuss with nuance. But I appreciate the direct questions, and I’ll do my best to answer them narrowly.
What did Hamas intend to accomplish? They wanted to inflict maximum pain on Israel — or, put differently, to kill and kidnap as many Israelis as they could. Hamas has, since its inception, had as its goal the destruction of the Israeli state, which they see as existing on land entirely and rightfully belonging to Palestinians.
Hamas has said that the October 7 attack was a reaction to Israel's purported plans to eliminate Palestine, and was a strategic move to alleviate the blockade in the Gaza Strip and establish a Palestinian state with Jerusalem as its capital. Some experts have also speculated Hamas wanted to disrupt the normalization of relations between Israel and Arab states, which had been expanding.
Why that day? Tensions between Israelis and Palestinians were on the rise before October 7, with West Bank settlement expansion and violence at the site of the Al-Aqsa Mosque as major sources of tension. In March of 2023, during the Jewish holy period of Passover and the Muslim holy period of Ramadan, violent disputes broke out between Jews and Muslims at the Al-Aqsa mosque, a holy site in Islam as well as the location of the Temple Mount, a holy site in Judaism. Hamas called its Oct. 7 attack “The Al Aqsa Flood” as a response to those killed or injured at the Al Aqsa mosque. Leading up to October, Hamas began gathering resources and performing military drills in Gaza in preparation for an attack.
Why that place? That’s a little bit more straightforward. Hamas attacked Israeli settlements that were close to the Gazan border because they were easily accessible and poorly protected.
What were their goals? For Hamas, the attack was a step towards the destruction of Israel. Again, that’s hard to discuss with nuance, but I encourage you to read this report from the Center for Strategic and International Studies if you want more insight into Hamas’s goals. I excerpted its abstract below.
When Hamas took over the Gaza Strip by force of arms in 2007, it faced an ideological crisis. It could focus on governing Gaza and addressing the needs of the Palestinian people, or it could use the Gaza Strip as a springboard from which to attack Israel. Even then, Hamas understood these two goals were mutually exclusive. And while some anticipated Hamas would moderate, or at least be co-opted by the demands of governing, it did not. Instead, Hamas invested in efforts to radicalize society and build the militant infrastructure necessary to someday launch the kind of attack that in its view could contribute to the destruction of Israel.
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Under the radar.
Florida's six-week abortion ban goes into effect today, one month after the state Supreme Court ruled in favor of the measure. News of the court's ruling became a national controversy, but today the ruling's impact will actually be felt, with abortion clinics across the state beginning to reject certain patients. The ban includes exceptions for rape, incest, medical emergencies and some fetal anomalies, though patients have to present police reports, medical records, or court orders to claim the exception. A statewide ballot measure to provide a constitutional right to abortion will be voted on in November. The Hill has the story.
Numbers.
- 294,000. The approximate number of girls who participated in high school sports in the 1971-72 school year, according to the National Federation of State High School Associations.
- 817,000. The approximate number of girls who participated in high school sports in the 1972-73 school year, the first academic year after Title IX went into effect.
- 30.5%. According to the NCAA, the percentage of participants in its championship sports in 1982 who were women.
- 43.5%. The percentage of participants in the NCAA’s championship sports in 2016 who were women.
- 1.13 to 1. The female-to-male enrollment ratio at NCAA Division I schools in 2016.
- 0.88 to 1. The female-to-male athletic participation ratio at NCAA Division I schools in 2016.
- 69%. The percentage of Americans who say transgender athletes should only be allowed to compete on sports teams that conform with their birth gender, according to a May 2023 Gallup poll.
The extras.
- One year ago today we wrote about Republicans passing a debt ceiling bill.
- The most clicked link in yesterday’s newsletter was the four officers killed in Charlotte, North Carolina.
- Nothing to do with politics: A new world record for longest tail on a mini horse.
Yesterday’s survey: 1,493 readers answered our survey on NPR’s bias with 59% saying the organization is “extremely liberal.” “I used to listen to NPR every day, but since I found neutral news sources online (like Tangle), I rarely tune in any more… though much of the non-news programming is excellent,” one respondent said.
Looking for our survey link? We’ve moved it to follow “My take,” where it will live from now on.
Have a nice day.
Kadir Tolla was driving along Interstate 94 in St. Paul, MN, when he saw an SUV next to the guardrail, engulfed in flames and with a passenger stuck inside. “I decided to park the car and get out and try to help,” said Tolla. About 10 other people also left their vehicles to help rescue the passenger who was stuck inside. Incredibly, the daring rescue was captured by dash cam footage. The Washington Post has the story on their Instagram.
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