[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                          ON THE BASIS OF SEX:
                     EXAMINING THE ADMINISTRATION'S
                  ATTACKS ON GENDER-BASED PROTECTIONS

=======================================================================

                                HEARING

                               BEFORE THE

            SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES


                         COMMITTEE ON EDUCATION
                               AND LABOR
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, SEPTEMBER 10, 2020

                               __________

                           Serial No. 116-62

                               __________

      Printed for the use of the Committee on Education and Labor
      
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    Available via the: https://edlabor.house.gov or www.govinfo.gov
    
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                    COMMITTEE ON EDUCATION AND LABOR

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

Susan A. Davis, California           Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona              Ranking Member
Joe Courtney, Connecticut            David P. Roe, Tennessee
Marcia L. Fudge, Ohio                Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan,      Tim Walberg, Michigan
  Northern Mariana Islands           Brett Guthrie, Kentucky
Frederica S. Wilson, Florida         Bradley Byrne, Alabama
Suzanne Bonamici, Oregon             Glenn Grothman, Wisconsin
Mark Takano, California              Elise M. Stefanik, New York
Alma S. Adams, North Carolina        Rick W. Allen, Georgia
Mark DeSaulnier, California          Lloyd Smucker, Pennsylvania
Donald Norcross, New Jersey          Jim Banks, Indiana
Pramila Jayapal, Washington          Mark Walker, North Carolina
Joseph D. Morelle, New York          James Comer, Kentucky
Susan Wild, Pennsylvania             Ben Cline, Virginia
Josh Harder, California              Russ Fulcher, Idaho
Lucy McBath, Georgia                 Ron Wright, Texas
Kim Schrier, Washington              Daniel Meuser, Pennsylvania
Lauren Underwood, Illinois           Dusty Johnson, South Dakota
Jahana Hayes, Connecticut            Fred Keller, Pennsylvania
Donna E. Shalala, Florida            Gregory F. Murphy, North Carolina
Andy Levin, Michigan*                Jefferson Van Drew, New Jersey
Ilhan Omar, Minnesota
David J. Trone, Maryland
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair

                   Veronique Pluviose, Staff Director
                 Brandon Renz, Minority Staff Director
                                 ------                                

            SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES

                  SUZANNE BONAMICI, OREGON, Chairwoman

Raul M. Grijalva, Arizona            James Comer, Kentucky,
Marcia L. Fudge, Ohio                  Ranking Member
Kim Schrier, Washington              Glenn ``GT'' Thompson, 
Jahana Hayes, Connecticut                Pennsylvania
David Trone, Maryland                Elise M. Stefanik, New York
Susie Lee, Nevada                    Dusty Johnson, South Dakota
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on September 10, 2020...............................     1

Statement of Members:
    Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil 
      Rights and Human Services..................................     1
        Prepared statement of....................................     5
     Cline, Hon. Ben, Representative of Congress from the State 
      of Virginia................................................     6
        Prepared statement of....................................     8

Statement of Witnesses:
    Buchert, Ms. Sasha J., Senior Attorney, Lambda Legal.........    25
        Prepared statement of....................................    28
    Frye, Ms Jocelyn, Senior Fellow, Center for American Progress    10
        Prepared statement of....................................    12
    Gross Graves, Ms. Fatima, J.D., President and CEO National 
      Women's Law Center.........................................    55
        Prepared statement of....................................    58
    Harris, Ms. Samantha K., J.D., Senior Fellow, Foundation for 
      Individual Rights In Education.............................    41
        Prepared statement of....................................    43

Additional Submissions:
    Chairwoman Bonamici:.........................................
        Revise Regulations and Enforcement Practices to Recognize 
          Civil Rights Protections for LGBT Americans and Comply 
          With the Bostock Decision..............................    98
        Letter dated August 13, 2020 from the Congress of the 
          United States..........................................   102
        Education/Civil Rights Open Letter on the Rights of LGBTO 
          + Students and Staff...................................   106
        Letter dated September 8, 2020 from GLSEN................   114
        Remarks for the Record from Schrier, Hon. Kim, a 
          Representative in Congress from the State of Washington   121
    Scott, Hon. Robert C. ``Bobby'', a Representative in Congress 
      from the State of Virginia:
        Letter dated December 20, 2019 from the Committee On 
          Education and Labor....................................   122
        Prepared statement from Americans United (AU)............   128
Questions submitted for the record by:
        Chairwoman Bonamici 




        Schrier, Hon. Kim........................................   146
        Comer, Hon. James, a Representative in Congress from the 
          State of Kentucky......................................   152
    Responses submitted for the record by:
        Ms. Buchert..............................................   153
        Ms. Frye.................................................   158
        Ms. Gross Graves.........................................   161
        Ms. Harris...............................................   174

 
                          ON THE BASIS OF SEX:
                     EXAMINING THE ADMINISTRATION'S
                  ATTACKS ON GENDER-BASED PROTECTIONS

                              ----------                              


                      Thursday, September 10, 2020

                        House of Representatives

            Subcommittee on Civil Rights and Human Services

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 12:33 p.m., in 
Room 2175 and via Webex, Rayburn House Office Building. Hon. 
Suzanne Bonamici (Chairwoman of the subcommittee) presiding.
    Present: Representatives Bonamici, Hayes, Trone, Lee, 
Cline, and Johnson.
    Also Present: Representatives Scott, and Foxx.
    Staff Present: Phoebe Ball, Disability Counsel; Katie 
Berger, Professional Staff; Ilana Brunner, General Counsel; 
Christian Haines, General Counsel; Sheila Havenner, Director of 
Information and Technology; Eli Hovland, Policy Associate; 
Ariel Jona, Staff Assistant; Carrie Hughes, Director of Health 
and Human Services; Andre Lindsay, Policy Associate; Jaria 
Martin, Clerk/Special Assistant to the Staff Director; Eunice 
Ikene, Labor Policy Advisor; Richard Miller, Director of Labor 
Policy; Katelyn Mooney, Associate General Counsel; Max Moore, 
Staff Assistant; Mariah Mowbray, Clerk/Staff Assistant; 
Veronique Pluviose, Staff Director; Carolyn Ronis, Civil Rights 
Counsel; Theresa Thompson, Professional Staff; Loredana 
Valtierra, Education Policy Counsel; Banyon Vassar, Deputy 
Director of Information Technology; Cyrus Artz, Minority Staff 
Director; Kelsey Avino, Minority Fellow; Gabriel Bisson, 
Minority Staff Assistant; Courtney Butcher, Minority Director 
of Member Services and Coalitions; Rob Green, Minority Director 
of Workforce Policy; Amy Raaf Jones, Minority Director of 
Education and Human Resources Policy; John Martin, Minority 
Workforce Policy Counsel; Hannah Matesic, Minority Director of 
Operations; Alexis Murray, Minority Professional Staff Member; 
Ben Ridder, Minority Professional Staff Member; Chance Russell, 
Minority Legislative Assistant; Mandy Schaumburg, Minority 
Chief Counsel and Deputy Director of Education Policy, and Brad 
Thomas, Minority Senior Education Policy Advisor.
    Chairwoman Bonamici. I note that a quorum is present. The 
subcommittee is meeting today for a hearing to hear testimony 
on ``On the Basis of Sex: Examining the Administration's 
Attacks on Gender-Based Protections''.
    As this is a completely virtual hearing, I ask that all 
microphones for Members and witnesses participating remotely be 
kept muted as a general rule to avoid unnecessary background 
noise. Members and witnesses will be responsible for unmuting 
themselves when they are recognized to speak or when they wish 
to seek recognition.
    Further, pursuant to House Resolution 965 and its 
accompanying regulations, Members are required to leave their 
cameras on for the entire time they are in an official 
proceeding, even if they step away from the camera.
    This is an entirely remote hearing, and as such, the 
committee's hearing room is officially closed. Members who 
choose to sit with their individual devices in the hearing room 
must wear headphones to avoid feedback, echoes, and distortion 
resulting from more than one person on the software platform 
sitting in the same room, as has been reported by other 
committees. They are also expected to adhere to social 
distancing and safe healthcare guidelines, including the use of 
masks, gloves, and wiping down their areas, both before and 
after their presence in the hearing room.
    Although a roll call is not necessary to establish a quorum 
in official proceedings, conducted remotely, whenever there is 
an official proceeding with remote participation, the Clerk 
will call the role to help make clear who is present at the 
start of the proceeding. So at this time, I ask the Clerk to 
call the roll.
    The Clerk. Ms. Bonamici?
    Chairwoman Bonamici. Present.
    The Clerk. Mr. Grijalva?
    [No response.]
    The Clerk. Ms. Fudge.
    [No response.]
    The Clerk. Ms. Schrier?
    [No response.]
    The Clerk. Mrs. Hayes?
    Mrs. Hayes. Present.
    The Clerk. Mr. Trone.
    [No response.]
    The Clerk. Mrs. Lee?
    Mrs. Lee. Present.
    The Clerk. Chairman Scott?
    Mr. Scott. Present.
    The Clerk. Mr. Cline?
    Mr. Cline. Present.
    The Clerk. Mr. Thompson?
    [No response.]
    The Clerk. Ms. Stefanik?
    [No response.]
    The Clerk. Mr. Johnson?
    Mr. Johnson. Present. Thank you.
    The Clerk. Mrs. Foxx?
    [No response.]
    The Clerk. Chairwoman Bonamici, this concludes the roll 
call.
    Chairwoman Bonamici. Thank you so much. And I do want to 
welcome--
    Mrs. Foxx. I am not sure you heard me because I think I was 
muted. This is Virginia Foxx.
    The Clerk. You are present. Thank you.
    Chairwoman Bonamici. And I want to welcome Mr. Cline to the 
subcommittee in his first hearing as Ranking Member.
    So, opening statements, pursuant to Committee Rule 7(c), 
opening statements are limited to the Chair and Ranking Member. 
This will allow us to hear from our witnesses sooner and 
provides all members with adequate time to ask questions.
    So I recognize myself now for the purpose of making an 
opening statement.
    In the last 4 years the Trump Administration has taken many 
actions that erode civil rights protections for women and LGBTQ 
individuals. Today we will discuss the effects of these actions 
on our schools, workplaces, and healthcare system.
    One of the Administration's most recent and well-known 
attacks on gender based civil rights is its changes to the rule 
implementing Title IX. Under Title IX of the Educational 
Amendments of 1972 schools have a responsibility to provide 
equal access to education for all students. As part of Title 
IX's requirements, schools receiving federal funding, including 
institutions of higher education and K-12 schools, must take 
certain steps to address sexual misconduct that inhibits 
students' safety or access to education.
    Title IX is a necessary tool for protecting students' 
rights at a time when one in five women experience sexual 
assault during college. Yet, in May Secretary DeVos finalized a 
harmful rewrite of the Title IX rule. Problems with the DeVos 
Title IX rule include but are not limited to the following: The 
DeVos rule makes it harder for sexual assault survivors to 
receive justice by increasing the burden of proof beyond what 
other civil rights laws require, enforcing survivors to endure 
live cross-examination. These changes are likely to discourage 
survivors from reporting instances of sexual harassment and 
assault, which are already under reported. Another part of the 
rule gives colleges a pass if an incident is reported to the 
wrong person and it significantly narrows the definition of 
sexual assault to one that will excuse large swaths of sexual 
misconduct under Title IX. Furthermore, only schools found to 
be deliberately indifferent to complaints will be considered in 
violation of Title IX.
    This rule is simply too burdensome for survivors and it 
fails to hold institutions accountable for protecting students. 
There is no appropriate time for the Federal Government to 
erect barriers to justice for survivors of sexual assault, but 
the Administration's decision to finalize this rule in the 
middle of the COVID-19 pandemic was a stunning display of 
callousness.
    I also want to express my profound opposition to the 
Education Department's refusal to halt its efforts to restrict 
the rights of transgender students. In Bostock versus Clayton 
County the Supreme Court recently held that prohibitions 
against discrimination on the basis of sex prohibit 
discrimination against LGBTQ individuals. Although the decision 
was under Title VII because it was in the context of 
employment, Title IX was essentially modeled on Title VII. 
There is no rational reason why ``on the basis of sex'' should 
be interpreted differently. In fact, the Supreme Court in 
Bostock held that it is impossible to discriminate against a 
person for being gay or transgender without discriminating 
against that individual based on sex. Despite that clear 
language, the Department continues to ignore the holding in 
that case, that case from the United States Supreme Court.
    As we speak, the Trump Administration is also threatening 
to strip funding from Connecticut schools that allow 
transgender athletes to compete according to their gender 
identity. This threat is cruel and harmful. As cash strapped 
schools face unprecedented challenges related to COVID-19, the 
Department is using Federal funding to coerce these schools 
into harming transgender students. We must condemn this 
behavior in the strongest possible terms and the Department 
should immediately rescind its efforts aimed at singling out 
and humiliating transgender students.
    The Trump Administration's record on removing civil rights 
protections against gender bias in the workplace is equally as 
offensive. During the President's first year in office he 
turned his back on LGBTQ workers by systemically erasing 
workforce protections. In October of 2017 the Administration 
reversed an Obama-era policy that clarified transgender workers 
are protected from discrimination under Title VII of the Civil 
Rights Act. The very next day the Department of Justice issued 
sweeping guidance that gave federal agencies license to 
discriminate against LGBTQ workers in a memo that stated that 
the DOJ would take the position that Title VII's prohibition on 
sex discrimination does not include gender identity, including 
transgender status.
    In response, the House passed the Equality Act, the stark 
proposal to secure LGBTQ rights and to prohibit discrimination. 
As I mentioned, the Supreme Court's decision in Bostock made 
clear the federal civil rights protections on the basis of sex 
covers sexual orientation and gender identity. But that 
decision does contain some potential loopholes that could be 
used in an attempt to justify discrimination. So it is an 
important but incomplete step toward providing LGBTQ workers 
the workplace protections they deserve. That is why we need the 
Equality Act.
    Another concern is the Administration's efforts to 
eliminate the collection of pay data by the Equal Employment 
Opportunity Commission. This was an effort to obscure gender-
based pay discrimination as well as race discrimination and 
provide cover to employers that failed to provide equal pay for 
equal work. The decision to end the collection of pay data is 
an unprecedented setback for the enforcement of Title VII, 
Executive Order 11246, and the Equal Pay Act.
    Another serious consequence of the Trump Administration's 
gender-based attacks is in the area of healthcare. As we 
continue to confront the COVID-19 pandemic, the Administration 
continues to restrict access to healthcare. Specifically, the 
Administration has tried to rollback an Obama-era rule that 
strengthened the anti-discrimination provisions in the 
Affordable Care Act known as Section 1557. Section 1557 is 
designed to prohibit discrimination against patients on the 
basis of race, color, national origin, sex, age, or disability. 
On June 19, at a time when our Nation eclipsed more than 2 
million confirmed COVID-19 cases and there had been more than 
114,000 confirmed and probable deaths, a number that has sadly 
risen since June, the Administration removed the explicit 
provisions that protected against discrimination based on 
pregnancy and pregnancy termination and instead restored an 
outdated interpretation of sex discrimination that excludes 
gender identity. In other words, a rule that was meant to 
guarantee proper care for women and LGBTQ people was contorted 
in a way that means they can be denied care in the middle of a 
global pandemic.
    Although the rollback of Section 1557 was put on hold by a 
Federal Court, it still looms as a threat to the health and 
well-being of millions of Americans.
    We are in challenging times. Millions of Americans have 
lost their jobs, their health insurance, and thousands have 
lost their lives. This Nation deserves better.
    I thank our distinguished witnesses for being here today 
and I look forward to the discussion.
    I now yield to Mr. Cline for an opening statement.
    [The statement of Chairwoman Bonamici follows:]

 Prepared Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee 
                   on Civil Rights and Human Services

    In the past four years, the Trump administration has taken many 
actions that erode civil rights protections for women and LGBTQ 
individuals.
    Today, we will discuss the effects of these actions on our schools, 
workplaces, and health care system.
    One of the administration's most recent and well-known attacks on 
gender-based civil rights is its changes to the rule implementing Title 
IX.
    Under Title IX of the Educational Amendments Act of 1972, schools 
have a responsibility to provide equal access to education for all 
students. As part of Title IX's requirements, schools receiving federal 
funding--including institutions of higher education and K-12 schools--
must take certain steps to address sexual misconduct that inhibits 
students' safety or access to education.
    Title IX is a necessary tool for protecting students' rights at a 
time when one in five women experience sexual assault during college.
    Yet in May, Secretary DeVos finalized a harmful rewrite of Title IX 
rule.
    Problems with the DeVos Title IX rule include:
    * The DeVos rule makes it harder for sexual assault survivors to 
receive justice by increasing the burden of proof beyond what other 
civil rights laws require and forcing survivors to endure live cross 
examination. These changes are likely to discourage survivors from 
reporting instances of sexual harassment and assault, which are already 
severely underreported.
    * Another part of the rule gives colleges a pass if an incident is 
reported to the wrong person, and it significantly narrows the 
definition of sexual assault to one that will excuse large swaths of 
sexual misconduct under Title IX.
    Furthermore, only schools found to be ``deliberately indifferent'' 
to complaints will be considered in violation of Title IX. Due process 
protections must be maintained during these procedings, but the DeVos 
rule is too burdensome for survivors while failing to hold institutions 
accountable for protecting students.
    There is no appropriate time for the federal government to erect 
barriers to justice for survivors of sexual assault, but the 
administration's decision to finalize this rule in the middle of the 
COVID-19 pandemic was a stunning display of callousness.
    I also want to express my profound opposition to the Education 
Department's refusal to halt its efforts to restrict the rights of 
transgender students. In Bostock v. Clayton Count, the Supreme Court 
recently held that prohbitions against discrimination ``on the basis of 
sex'' prohibit discrimination against LGBTQ individuals. Although the 
decision was under Title VII because it was in the context of 
employment, Title IX was essentially modeled on Title VII so there is 
no rational reason why ``on the basis of sex'' should be interpreted 
differently. In fact, the Supreme Court in Bostock states ``it is 
impossible to discriminate against a person for being homosexual or 
transgender without discriminating against that individual based on 
sex.''
    Despite that clear language, the Department continues to ignore the 
holding in that Supreme Court case.
    As we speak, the Trump administration is also threatening to strip 
funding from Connecticut schools that allow transgender athletes to 
compete according to their gender identity.
    This threat is cruel and harmful. As cash-strapped schools face 
unprecedented challenges related to COVID-19, the Department is using 
federal funding to coerce these schools into harming transgender 
students. We must condemn this behavior in the strongest possible 
terms, and the Department should immediately rescind all efforts aimed 
at signaling out and humiliating transgender students.
    The Trump administration's record on removing civil rights 
protections against gender bias in the workplace is equally as 
offensive.
    During the President's first year in office he turned his back on 
LGBTQ workers by systematically erasing workforce protections. In 
October 2017, the administration reversed an Obama-era policy that 
clarified that transgender workers are protected from discrimination 
under Title VII of the Civil Rights Act.
    The very next day, the Department of Justice issued sweeping 
guidance that gave federal agencies license to discriminate against 
LGBTQ workers in a memo that stated the DOJ would take the position 
that Title VII's prohibition on sex discrimination does not include 
gender identity, including transgender status.
    In response, the House passed the Equality Act, a historic proposal 
to secure LGBTQ rights and to prohibit discrimination.
    As I mentioned, the Supreme Court's decision in Bostock made clear 
that federal civil rights protections on the basis of sex covers sexual 
orientation and gender identity. But that decision does contain some 
potential loopholes that could be used in an attempt to justify 
discrimination, so it is an important but incomplete step toward 
providing LGBTQ workers the workplace protections they deserve.
    Another concern is the administration's efforts to eliminate the 
collection of pay data by the Equal Employment Opportunity Commission. 
This was an intentional effort to obscure gender-based pay 
discrimination, as well as race discrimination, and provide cover to 
those employers that fail to provide equal pay for equal work. The 
decision to end the collection of pay data is an unprecedented setback 
for the enforcement of Title VII, Executive Order 11246, and the Equal 
Pay Act.
    Another serious consequence of the Trump administration's gender-
based attacks is in the area of health care. As we continue to confront 
the COVID-19 pandemic, the administration continues to restrict access 
to health care.
    Specifically, the administration has tried to roll back an Obama-
era rule that strengthened anti-discrimination provisions in the 
Affordable Care Act, known as Section 1557.
    Section 1557 is designed to prohibit discrimination against 
patients on the basis of race, color, national origin, sex, age, or 
disability. On June 19, 2020 - as our nation eclipsed 2.2 million 
confirmed COVID-19 cases and more than 114,000 confirmed and probable 
deaths - (COVID Tracking Project) the administration removed the 
explicit provisions that protected against discrimination based on 
pregnancy and pregnancy termination, and instead restored an outdated 
interpretation of sex discrimination that excludes gender identity.
    In other words, a rule that was meant to guarantee proper care for 
women and LGBTQ people was contorted into a means of denying them care 
in the middle of a global pandemic.
    Although the rollback of Section 1557 was put on hold by a federal 
court, it still looms as a threat to the health and well-being of 
millions of Americans.
    These are challenging times. Millions of Americans have lost their 
jobs and health insurance - and thousands have lost their lives.
    This nation deserves better.
    Thank you to our distinguished witnesses for being here today. I 
look forward to today's discussions and now yield to Mr. Cline for an 
opening statement.
                                 ______
                                 
    Mr. Cline. Thank you, Madam Chair. I appreciate the 
opportunity to serve with you on the subcommittee and am 
looking forward to continuing the great work that this 
subcommittee has done in previous efforts.
    Prior to coming to Congress I was proud to serve as a 
prosecutor locally in domestic violence cases to ensure that 
justice was done. Additionally, during my time as a delegate in 
the Virginia State House I authored several bills to increase 
protections for such victims and their families. And since I 
arrived in Congress I have worked across the aisle to introduce 
legislation alongside Congresswoman McBath to allow funds 
allotted through the Family Violence Prevention Services Act to 
still be accessed by removing certain requirements during the 
pandemic.
    Here in Congress this committee has created protections for 
pregnant woman, students, and workers alike so they can live, 
work, and learn in environments free from violence and 
discrimination. I know I speak for all my colleagues here today 
when I say no one should ever be denied an opportunity because 
of unlawful discrimination.
    That is why my Republican colleagues and I consistently 
support legislation that aligns with protections defined under 
existing civil rights laws. These very laws are what ensure the 
fairness I mentioned earlier in classrooms and workplaces 
across the country.
    Unfortunately, the same cannot be said for my colleagues on 
the other side of the aisle. The majority will often cherry 
pick who does and does not deserve protections. Democrats have 
undermined students' rights and fundamental fairness under 
Title IX of the Education Amendments of 1972. In 2011 the Obama 
Administration issued guidance that created significant 
controversy and confusion. Many criticized the guidance for 
undermining due process rights for involved parties and for 
denying public review and comment from affected stakeholders. 
In fact, multiple court cases have struck down campus 
procedures that resulted from the guidance.
    The Trump Administration addressed this past wrongdoing by 
taking over 124,000 public comments into consideration while 
drafting a rule that defines the responsibilities of 
institutions to respond to allegations of sexual harassment, 
including sexual assault under Title IX. Some have been 
critical of the Education Department's updated Title IX rule 
despite the fact that the rule is rooted in our deepest time 
tested legal traditions that requires schools to take all 
allegations of sexual harassment, including sexual assault, 
seriously, and to support and protect survivors during every 
step of the process. This rule will help ensure that all 
students can pursue education free from discrimination, 
harassment, and sexual violence. And we owe it to survivors to 
ensure that clear and fair procedures are in place to respond 
to sexual violence. The Department of Education's Title IX rule 
delivers on this front.
    The majority has also consistently tried to roll back 
protections that allow religious organization to operate in 
accordance with their sincerely held religious beliefs. In 
fact, they slammed a proposed rule announced last year by the 
Department of Labor to protect religious liberty. Religious 
organizations have been discouraged from seeking federal 
contracts because of uncertainty surrounding the requirements 
for religious organizations. The Department of Labor's proposed 
rule clarifies the protections given to religious organizations 
that contract with the Federal Government. DOL rightly 
considered recent Supreme Court decisions regarding the 
religious freedom of employers, which affirmed the limitations 
on the government to infringe on the free exercise of religion. 
Not only does this proposed rule protect religious liberty, it 
also benefits both the contracting system and taxpayers by 
encouraging additional qualified organizations to bid for 
contracts which will increase competition and provide needed 
goods and services that may otherwise not be available.
    The bottom line is all Americans deserve to learn and work 
in an environment free from discrimination based on their sex 
or religion. Committee Republicans have and will continue to 
advocate for policies that allow students to learn and 
employees to work in environments free from discrimination.
    While I look forward to the testimony from our witnesses 
today, I would like to point out that the majority only allowed 
the minority to invite one witness to cover a very broad set of 
issues. Unfortunately, this structure will limit the 
subcommittee's ability to have a robust discussion today on how 
to best ensure Americans can pursue an education and a career 
in positive environments.
    Thank you, Madam Chair, and I yield back.
    [The statement of Mr. Cline follows:]

Prepared Statement of Hon. Ben Cline a Representative of Congress from 
                         the State of Virginia

    Prior to coming to Congress, I was proud to serve as a prosecutor 
of domestic violence cases to ensure justice was carried out. 
Additionally, during my time as a Delegate in Virginia's General 
Assembly, I authored several bills to meaningfully increase protections 
for such victims and their families. Furthermore, while in Congress, I 
have worked across the aisle to introduce H.R. 6685 with Congresswoman 
McBath to allow funds allotted through the Family Violence Prevention 
Services Act to still be accessed during the pandemic. Here in 
Congress, our committee has created protections for pregnant women, 
students, and workers alike so they can live, work, and learn in 
environments free from discrimination. I know I speak for all my 
colleagues here today when I say no one should ever be denied an 
opportunity because of unlawful discrimination.
    That's why my Republican colleagues and I consistently support 
legislation that aligns with protections defined under existing civil 
rights laws. These very laws are what ensure the fairness I mentioned 
earlier in classrooms and workplaces across the country.
    Unfortunately, the same cannot be said for my colleagues on the 
other side of the aisle. Democrats cherry pick who does and does not 
deserve protections.
    Democrats have undermined students' rights and fundamental fairness 
under Title IX of the Education Amendments of 1972. In 2011, the Obama 
administration issued guidance that created significant controversy and 
confusion. Many criticized the guidance for undermining due process 
rights for involved parties and for denying public review and comment 
from affected stakeholders. In fact, multiple court cases have struck 
down campus procedures that resulted from the guidance.
    The Trump administration addressed this past wrongdoing by taking 
over 124,000 public comments into consideration while drafting a rule 
that defines the responsibilities of institutions to respond to 
allegations of sexual harassment, including sexual assault, under Title 
IX.
    Many Democrats have been critical of the Education Department's 
updated Title IX rule despite the fact that the rule is rooted in our 
deepest, time-tested legal traditions. It requires schools to take all 
allegations of sexual harassment, including sexual assault, seriously, 
and support and protect survivors during every step of the process.
    This rule will help ensure that all students can pursue education 
free from discrimination, harassment, and sexual violence, and we owe 
it to survivors to ensure that clear and fair procedures are in place 
to respond to sexual violence. The Department of Education's Title IX 
rule delivers on this front.
    Democrats have also consistently tried to roll back protections 
that allow religious organizations to operate in accordance with their 
sincerely held religious beliefs.
    In fact, Democrats slammed a proposed rule announced last year by 
the Department of Labor (DOL) to protect religious liberty. Religious 
organizations have been discouraged from seeking federal contracts 
because of uncertainty surrounding the requirements for religious 
organizations. DOL's proposed rule clarifies the protections given to 
religious organizations that contract with the federal government. DOL 
rightly considered recent Supreme Court decisions regarding the 
religious freedom of employers, which affirmed the limitations on the 
government to infringe on the free exercise of religion. Not only does 
this proposed rule protect religious liberty, it also benefits both the 
contracting system and taxpayers by encouraging additional qualified 
organizations to bid for contracts, which will increase competition and 
provide needed goods and services that may otherwise not be available.
    Bottom line, all Americans deserve to learn and work in an 
environment free from discrimination based on their sex or religion. 
Committee Republicans have and will continue to advocate for policies 
that allow students to learn and employees to work in environments free 
from discrimination.
    While I look forward to the testimony from our witnesses, I'd like 
to point out that my Democrat colleagues only allowed Republicans to 
invite one witness to cover a very broad set of issues. Unfortunately, 
this structure will limit the Subcommittee's ability to have a robust 
discussion today on how to best ensure Americans can pursue an 
education and a career in positive environments.''
                                 ______
                                 
    Chairwoman Bonamici. Thank you, Ranking Member Cline.
    All other Members who wish to insert written statements 
into the record may do so by submitting them to the Committee 
Clerk electronically in Microsoft Word format by 5:00 p.m. on 
Thursday, August 24th. I will now introduce our witnesses.
    Jocelyn Frye is a senior fellow at the Center for American 
Progress where she focuses on a wide range of women's economic 
security and employment issues. Prior to joining the Center 
Frye served for 4 years as deputy assistant to President Obama 
and director of policy and special projects for First Lady 
Obama overseeing the broad issue portfolio of the First Lady.
    Next, Sasha Buchert is a senior attorney in the Washington, 
DC office of Lambda Legal, the oldest and largest organization 
dedicated to advancing the civil rights of lesbians, gay men, 
bisexuals, transgender people, and people living with HIV. 
Before joining Lambda Legal Sasha served as staff attorney and 
policy counsel at the Transgender Law Center. Sasha was the 
first openly transgender person to be appointed to an Oregon 
State Board, and from 2012 to 2013 she served as chair of the 
Oregon State Hospital Advisory Board. I welcome an Oregonian to 
the panel.
    Next, Samantha Harris is a senior fellow at the Foundation 
for Individual Rights and Educations, FIRE, an advocacy group 
defending and sustaining the individual rights of students and 
faculty members at Americas colleges and universities. Ms. 
Harris has held several positions at FIRE, including vice 
president for procedural advocacy and director of policy 
research. Additionally, Ms. Harris serves as counsel at the law 
firm Mudrick & Zucker, representing students and faculty 
members.
    And, finally, Fatima Goss Graves is president and CEO of 
the National Women's Law Center. She is among the co-founders 
of the Times Up Legal Defense Fund, which connects those who 
experience sexual misconduct in the workplace with legal and 
public relations assistance. She has held many positions at 
NWLC including senior vice president for program and vice 
president for education and employment. She led the Center's 
anti-discrimination initiatives with a particular focus on 
outcomes for women and girls of color.
    Instructions to our witnesses, we appreciate the witnesses 
for participating today and we would look forward to your 
testimony. I remind the witnesses that we have read your 
written statements and they will appear in full in the hearing 
record.
    Pursuant to Committee Rule 7(d) and committee practice, 
each of you is asked to limit your oral presentation to a five 
minute summary of your written statement.
    I also remind the witnesses that pursuant to Title 18 of 
the U.S. Code section 1001, it is illegal to knowingly and 
willfully falsify any statement, representation, writing, 
document, or material fact presented to Congress or otherwise 
conceal or cover up a material fact.
    During your testimony staff will be keeping track of time 
and we will use a chime to signal when 1 minute is left and 
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    For the witnesses participating remotely, if you experience 
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remember to unmute your system.
    I will first recognize Ms. Frye for five minutes.

 TESTIMONY OF JOCELYN FRYE, SENIOR FELLOW, CENTER FOR AMERICAN 
                            PROGRESS

    Ms. Frye. Thank you, Madam Chair Bonamici and Ranking 
Member Cline, Members of the subcommittee. Also I want to 
acknowledge Chairman Scott and Ranking Member Foxx. Thank you 
for the invitation to be here. It is a true privilege.
    My name is Jocelyn Frye. I am a senior fellow at the Center 
for American Progress. The Center is a think tank devoted to 
progressive values and improving the lives of all Americans. 
And I work with our women's initiative that has focused on 
expanding employment and economic opportunities for women 
because we believe that women are integral to the economic 
progress of our Nation now and in the future.
    As you well know, this hearing occurs at a critical moment 
both in terms of the economic crisis that we are dealing with 
because of the global pandemic, but also because we are engaged 
in a robust and important conversation about the presence of 
system racism and other forms of bias. And I think both of 
those conversations are relevant today because it is critical 
to create equitable workplaces and to really challenge systemic 
practices that for years have depressed the wages and 
opportunities for women.
    And it is precisely because of the urgency of those issues 
that we have opposed some of the actions of the Trump 
Administration specifically that undermine workplace 
enforcement and key protections that women often depend on. I 
am going to just highlight a few of those actions and then I am 
happy to respond to questions.
    On equal pay, as the Chair alluded to, one of the actions 
that has been most troubling is the Administration's decision 
to discontinue the collection of pay data. The collection of 
pay data is critical to enforcement. And the rule that was 
adopted during the Obama Administration was really an effort to 
close a gap in the information that was available to 
enforcement agencies. And the decision of this Administration 
to decline to continue that will impact the ability to ensure 
progressive and robust enforcement going forward.
    I also want to call attention to the decision of the Fair 
Pay and Safe Workplaces Executive Order. There are a couple of 
provisions that are particularly relevant to our conversations, 
one on pay transparency that would have given employees better 
information about their pay to ensure they are being paid 
fairly. There is also a provision dealing with arbitration and 
preventing the use of pre-dispute arbitration provisions that 
can curb the ability of workers to bring discrimination claims 
and sexual harassment and assault claims. Both of those 
provisions were--the loss of those are problematic.
    I also want to draw attention to the issue of just the 
wholesale curb of protections for LGBTQI+ workers. In addition 
to the reinterpretation of Title VII to exclude workers who are 
transgender and to limit the ability to bring cases based on 
gender identity, the Administration has also sought to 
undermine protections in federal contracting using religious 
freedom as an excuse to permit discrimination. And while we 
certainly respect the right of religious freedom, we also don't 
think that should be used as an excuse for discrimination and 
it is a misuse of the Executive Order of power.
    There are other measures that I will be happy to discuss. I 
do want to draw attention to some newer things that we are 
seeing, including there is a new rule that we have seen from 
the EEOC that may make it easier for employers to effectively 
delay litigation by trying to just inject repeated requests for 
conciliation. Obviously, want employers and the Commission to 
be able to engage in conciliation, but we don't want it to be 
used as a tool to delay the ability of the Commission to move 
forward when needed.
    I also would be remiss if I didn't mention things that they 
could be doing. In addition to reinstating the pay data 
disclosure, we should be thinking about new measures. The UK 
does a pay data disclosure where they require employers to 
publish their wage gap. We should be thinking about ways to 
challenge things like intersectional discrimination and the 
experiences faced by women of color.
    I think at the end of the day what is most important is to 
have robust enforcement of the law that gives us confidence 
that this Administration is committed to equal employment 
opportunity.
    Thank you.
    [The statement of Ms. Frye follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairwoman Bonamici. Thank you for your testimony.
    Next we will hear from Ms. Buchert for five minutes.

 TESTIMONY OF SASHA JEAN BUCHERT, SENIOR ATTORNEY, LAMBDA LEGAL

    Ms. Buchert. Good afternoon, Chairwoman Bonamici, Ranking 
Member Cline, and distinguished members of the committee. Thank 
you for the opportunity to testify during this important 
hearing.
    My name is Sasha Buchert and I am a senior attorney at 
Lambda Legal and I am also a daughter, a sister, Marine Corps 
veteran, and a proud transgender women.
    This hearing follows 3\1/2\ years of relentless attacks by 
the Trump-Pence Administration targeting LGBTQ people in a wide 
range of contexts, including, to name just a few examples, the 
ban on open transgender military service, attacks targeting 
transgender students, LGBTQ workers, immigrants, prisoners, 
elders, transgender homeless people and, as this testimony will 
identify, LGBTQ patients.
    And no federal agency has targeted LGBTQ people more than 
the U.S. Department of Health and Human Services, the agency 
tasked with enhancing the health and well-being of all 
Americans. Lambda Legal has now filed six different lawsuits 
against HHS in the last 3\1/2\ years to block administrative 
changes that invite harm to our community.
    One of the most pernicious attacks from HHS came less than 
3 months ago, well into the pandemic, when HHS chose to 
finalize a rule seeking to carve out clarification that LGBTQ 
people, women, and other vulnerable communities are protected 
under the non-discrimination provisions of Section 1557 of the 
Affordable Care Act. HHS announced the final rule on Friday, 
June 12, and the following Monday the Supreme Court issued the 
Bostock decision in which Justice Gorsuch clarified in his 6-3 
majority opinion that it is impossible to discriminate against 
a person for being gay or transgender without discriminating on 
the basis of sex. In response to this very clear Supreme Court 
precedent concerning a statute that is written consistently 
with Title IX, members of the community and policy makers 
quickly informed HHS that the proposed rule conflicts with this 
decision and urged them to withdraw the rule, but HHS would not 
be deterred. Less than 5 days later after the Bostock decision 
was issued, HHS barreled forward and published the final rule 
on the following Friday without a single mention of the Bostock 
ruling.
    HHS's refusal to address the Bostock decision is 
breathtaking and manifests a stunning disregard for the rule of 
law and reveals the agency's single-minded pursuit to strip 
life-saving protections from LGBTQ people and other vulnerable 
communities. Unsurprisingly, the rule has already been enjoined 
by two different Federal Courts for this very reason.
    In another example of HHS's repudiation of its purpose and 
mission, HHS issued the grants rule on November 19, 2019, which 
seeks to eliminate express non-discrimination protections for 
people seeking HHS programs and services. HHS grants $525 
billion a year to millions of people on a wide array of 
programming that includes HIV prevention programs, programs 
servicing older Americans, like Meals on Wheels, programs 
servicing youth experiencing homeless, and early childhood 
programs like Head Start. The rule if finalized and enforced 
would have a devastating impact on LGBTQ people, but especially 
it would have a devastating impact on youth. There are more 
than 125,000 youth who cannot safely return to their families 
of origin waiting to be adopted into the stable and loving 
homes, and it is reprehensible that HHS is seeking to allow 
agencies to turn away competent, loving, foster, and adoptive 
parents and jeopardizing that opportunity for placement, for 
permanency and placement.
    And yet one more example of HHS turning its mission on its 
head is HHS issued a final rule in May of 2019 that, among 
other things, improperly sought to expand statutory religious 
exemptions to greatly expand the number of people who could 
claim it and the kinds of healthcare than can be denied, 
essentially inviting healthcare providers to deny LGBTQ people 
healthcare treatment. The justification for that rule is they 
had supposedly received a significant number of complaints from 
religiously affiliated healthcare providers over a 2-year 
period. They said they had received 358, but in the course of 
litigation it came to light that almost 80 percent of those 
were vaccination-relatedvaccination complaints which HHS 
concedes were duplicates.
    In closing I would just say that although these attacks 
continue to be struck down by the Federal Courts they don't 
come without a cost. The rules place healthcare providers in 
legal jeopardy by falsely telling them that it is fine to 
discriminate, but more concerning, the rule making fosters 
discrimination against LGBTQ patients and discourages people 
from seeking healthcare in the first place. And the rule would 
of course fall hardest on those already marginalized 
communities, including people of color, people living with low 
incomes, women, and LGBTQ people.
    Thank you so much for the opportunity to testify and I look 
forward to your questions.
    [The statement of Ms. Buchert follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairwoman Bonamici. Thank you for your testimony.
    And I now recognize Ms. Harris for five minutes.

     TESTIMONY OF SAMANTHA K. HARRIS, J.D., SENIOR FELLOW, 
         FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION

    Ms. Harris. Chairwoman Bonamici, Ranking Member Cline, and 
distinguished Members of this subcommittee, thank you for 
allowing me the opportunity to testify here today.
    The new Title IX regulations are not an attack on gender 
based protections, rather, they restore Title IX's original 
focus on a complainant's access to education. They realign with 
decades of regulatory and judicial decision making about Title 
IX and they clarify and standardize disciplinary procedures 
following numerous court decisions about what Title IX and due 
process clause require of colleges and universities in these 
cases. In all of these regards the new regulations are a sorely 
needed correction to a system that had strayed very far from 
its original purpose. The focus on access to education is 
evident in the regulation's requirement that colleges and 
universities offer supportive measures to all complainants 
whether or not they file a formal complaint.
    The regulations also returned control to complainants in 
other important ways, such as by allowing for informal 
resolution when both parties prefer that route and by ensuring 
that medical records cannot be used without a party's consent.
    The regulations also restore a definition of harassment and 
a jurisdictional scope that were established by the Supreme 
Court in Davis v. Monroe County Board of Education. After Davis 
was decided in 1999, the Clinton Administration's OCR issued 
guidance in 2001 explicitly stating that although Davis 
concerned the liability context, ``the definition of hostile 
environment, harassment, sexual harassment used by the Court in 
Davis is consistent with the definition'' used by the 
Department for administrative enforcement. OCR further stated 
that ``schools benefit from consistency and simplicity in 
understanding what is sexual harassment for which the school 
must take responsive action''. A multiplicity of definitions 
would not serve this purpose.
    The Department departed radically from this in the years 
between 2011 and 2017 when it instructed schools to define 
sexual harassment far more broadly and at public institutions 
unconstitutionally as ``any unwelcome conduct of a sexual 
nature''. The 2001 guidance did use the phrase`` unwelcome 
conduct of a sexual nature'' to generally describe sexual 
harassment, but it was not, as some argued, the operative 
definition in that guidance. Rather, the Department adopted an 
operative definition that it asserted was consistent with the 
one set forth in Davis.
    Similarly, the jurisdictional limitations imposed by the 
regulations come directly from the Supreme Court's decision in 
Davis where the Court stated that ``the language of Title IX, 
which again addresses only discrimination that occurs under an 
education program or activity, cabins the range of misconduct 
that the statute prescribes''. The Court wrote that the 
statute's plain language confines the scope of prohibited 
conduct based on the recipient's degree of control over the 
harasser and the environment in which the harassment occurs. 
The Supreme Court has defined the jurisdiction limits of Title 
IX. It is not within the authority of an agency to ignore those 
limitations.
    Finally, the regulations establish uniform fair procedures 
for institutions to use in adjudicating sexual misconduct 
complaints. In response to the hundreds of lawsuits from 
respondents who allege they were denied a fair process, there 
has emerged a patchwork of case laws surrounding Title IX such 
that one's right in a Title IX proceeding depend on where one 
lives and attends college. It fell to the Department of 
Education, therefore, to standardize the rights of students 
under what is, after all, a federal civil rights statute. This 
is the agency's proper role and statutory charge. Moreover, the 
Department is obligated to ensure that students' constitutional 
rights, including First Amendment and due process rights, are 
not violated in the implementation of Title IX. And that has 
been a rampant problem over the past 10 years.
    The procedural safeguards in the new regulations--live 
hearing, cross-examination, meaningful notice, and access to 
evidence, and the presumption of innocence, are all things that 
various courts have held are part of students' due process 
rights. Now these essential provisions will protect all 
students.
    Thank you very much for your time and I look forward to 
answering your questions.
    [The statement of Ms. Harris follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    

    Chairwoman Bonamici. Thank you for your testimony.
    And I now recognize Ms. Goss Graves for five minutes. You 
will need to unmute yourself.

   TESTIMONY OF FATIMA GOSS GRAVES, J.D., PRESIDENT AND CEO 
                  NATIONAL WOMEN'S LAW CENTER

    Ms. Goss Graves. Apologies. Thank you, Chairwoman Bonamici, 
Ranking Member Cline, Chairman Scott, Ranking Member Foxx, and 
other Members of the subcommittee.
    I am Fatima Goss Graves, president and CEO of the National 
Women's Law Center. Founded the same year that Title IX was 
passed, the Law Center has worked to remove barriers to women 
and girls in education, childcare, income security, the 
workplace, and healthcare for nearly 5 decades and I very much 
appreciate the opportunity to testify today.
    My testimony will begin with the Administration's new Title 
IX rule that went into effect last month, which the National 
Women's Law Center has challenged in court.
    The rule comes as harassment in school remains alarmingly 
high, including 56 percent of girls and 40 percent of boys in 
K-12 schools who report experiencing harassment. And as a 2019 
report found, about 1 in 4 women and 1 in 15 men in college 
experience sexual assault. And LGBTQ students, students of 
color, and students with disabilities experience sexual 
violence at higher rates than other students.
    The student survivors we hear from at the Law Center 
recount what happens when schools that don't meet their Title 
IX obligations. They have struggled to stay in school and have 
been expelled for lower grades, they have been suspended after 
being blamed for their assault, they have been discouraged from 
reporting and met with unfair skepticism. We have heard about 
schools that process these that have treated survivors unfairly 
and in some cases they endured those traumatic processes with 
no outcomes that improve their situations.
    And this new Title IX rule puts students in schools in a 
terrible position. Under this rule schools are required to 
dismiss many kinds of Title IX complaints. But no school should 
be even allowed, much less required to dismiss a complaint 
simply because the student was raped at an off campus party or 
because each incident of the harassment they endured for months 
isn't considered severe by itself, or because the student 
dropped out of school when it was hard to be in the same class 
as their assailant. Nor should schools be allowed to ignore 
complaints because the respondent graduated or because a 
student reported it to a coach rather than to the dean.
    And it is simply unfair to require schools to have hostile 
grievance procedures only for sexual harassment complaints. 
This includes the new requirement that in higher education any 
party and any witness that led to direct live and oral cross-
examination--it is a reminder that these are not courtrooms and 
the rules of evidence don't apply. And that cross-examination 
can come from an angry parent or from a fraternity brother. No 
such requirements exist for addressing any other form of 
misconduct at schools, including other forms of discrimination 
or even a fist fight among students. This is a rule that sends 
a giant message that survivors are uniquely unreliable. And 
implicit in such a requirement is a deep-rooted skepticism of 
sexual assault itself.
    The Department may claim that the rule will restore 
confidence in school proceedings, but the rule will prohibit 
schools from considering a broad swath of relevant evidence, 
broader than in courtrooms or in any other type of 
administrative hearing. It may claim that the rule helps 
survivors, but survivors have been fighting so hard these last 
3 years to stop this very rule. And let me be clear, the 
survivors we work with are deeply invested in due process. They 
want to be treated fairly in these proceedings and that is what 
fair process is about. And the outcome of the rule is that 
schools will be less safe.
    The other area I wish to highlight is this Administration's 
attack on transgender students. Indeed, one of Secretary DeVos' 
first official actions was to rescind key civil rights guidance 
on protecting transgender students from discrimination under 
Title IX. It has now been 3 months since the Supreme Court 
decided the Bostock decision. In that case the Supreme Court 
made clear that Title VII of the Civil Rights Act ban on sex 
discrimination prohibits discrimination based on sexual 
orientation and gender identity. Following that historic 
decision, Federal Courts again have confirmed that transgender 
students are protected under Title IX.
    Yet in recent Title IX enforcement letters the Department 
attempted to limit the reasoning in Bostock to exclude 
transgender students from civil rights protection. It actually 
took the extraordinary step of threatening to take away federal 
funding from entities that refused to exclude transgender 
students from participating in sports. This extra step to argue 
that policies that protect trans students from discrimination 
are a Title IX violation is such a dangerous distortion of law 
and of precedent.
    In sum, the last thing I have here is we have witnessed 
this Administration turn Title IX on its head and we believe 
students in this country deserve better.
    Thank you for the opportunity to be here today and I look 
forward to any questions.
    [The statement of Ms. Gross Graves follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    

    Chairwoman Bonamici. Thank you again to all of our 
witnesses.
    Under Committee Rule 8(a) we will now question witnesses 
under the five minute rule. I will be recognizing subcommittee 
Members in seniority order. And to ensure that the Member's 
five minute rule is adhered to staff will be keeping track of 
time and will use the lovely chime to signal when 1 minute is 
left and when time is up entirely. The short chime will chime 
when there is 1 minute and the longer chime when time is up, so 
please be attentive to the time.
    Again, if a member experiences technical difficulties 
please stay connected on the platform, make sure you are muted, 
and immediately call the committee's IT director, Sheila 
Havener, whose number has been provided.
    And I am going to start by recognizing the chairman of the 
full committee, Mr. Scott. You are recognized for five minutes 
for your questions.
    Mr. Scott. Thank you. Thank you, Madam Chair, thank you for 
your courtesy of allowing me to go first.
    First, I would like unanimous consent to enter into the 
record a statement from Americans United for Separation of 
Church and State.
    Chairwoman Bonamici. Without objection.
    Mr. Scott. Thank you.
    Ms. Frye, one of the things that concerns me about 
discrimination with this Administration is that it used to be 
the weight of the Federal Government would be on the side of 
the victim of discrimination. That used to be the person trying 
to get a job or trying to eat at a restaurant, but now 
apparently if you look at the Office of Federal Contract 
Compliance Programs, OFCCP, they have a regulation that would 
bring the weight of the Federal Government on the side of 
federal contractors who want to discriminate because of certain 
religious beliefs so that not the person seeking a job would 
have the weight of the government protecting him, but the 
employer who wants to discriminate would have the weight of the 
Federal Government protecting that right to discriminate. And 
that violates 80 years of precedence when President Roosevelt 
signed Executive Order 8802 to eradicate race discrimination in 
federal contracts.
    Can you say what you--the difference between the weight of 
the Federal Government being on the victim of discrimination 
rather than protecting the right to discriminate?
    Ms. Frye. Well, thank you for that, the question, Mr. 
Chairman.
    And you are absolutely right. The Executive Order 11246 
that was signed by President Johnson really came out of a 
legacy of recognizing that the Federal Government really had a 
critical role to play in ensuring that access to employment was 
open for everybody. And when you look at that history from 
Roosevelt, Eisenhower, Truman, Kennedy, you know, across 
Republican and Democratic presidents, they have used the power 
of the Federal Government to ensure that all workers, Black, 
White, all races and ethnicities, and expanded to encompass 
other demographic groups, really were available, particularly 
with employers who were getting federal dollars.
    And, you know, I think that is the important piece here, is 
that the Federal Government has role generally to enforce civil 
rights laws, but particularly when you are talking about 
employers, contractors, who have been given significant sums of 
money to do the work of the Federal Government. There the 
government has a higher obligation to make sure that the 
workplace is open to everybody and it is free of 
discrimination. And that is really the legacy that the OFCCP 
should be standing behind.
    Mr. Scott. Thank you.
    And I would ask unanimous consent that my letter of 
December 20, 2019 to Secretary Scalia on OFCCP's proposed rule 
to allow federal contractors to broadly discriminate against 
employees be entered into the record.
    Chairwoman Bonamici. Without objection.
    Mr. Scott. Thank you.
    Ms. Goss Graves, the Department of Education's final rule 
in Title IX removes the advance notice requirement that 
religious schools are going to claim sex discrimination 
protections conflict with their religious tenets, no longer 
have to provide advance notice about which part of Title IX 
they claim to be exempt from. The final rule also allows the 
school to withhold that information until a discrimination 
claim is filed against it.
    Can you address how this policy will harm students?
    Ms. Goss Graves. Thank you, Mr. Chairman.
    I think that this policy will harm students because both 
the Department of Education but is actually the own student 
will not know and it will encourage post justifications for the 
discrimination that they engage in. So students will be at the 
schools attending, not understanding that they may be receiving 
discrimination at some point, but schools have incentive to 
make up reasons after the fact to justify discriminatory 
conduct.
    Mr. Scott. Thank you.
    Madam Chair, by the time I get another question my time 
will expire, so I will yield back. And thank you very much for 
your courtesy.
    Chairwoman Bonamici. Thank you, Mr. Chairman.
    Next I recognize the Ranking Member of the full committee, 
Mrs. Foxx from North Carolina for your five minutes for your 
questions.
    Mrs. Foxx. Thank you, Madam Chairman. I appreciate that.
    Ms. Harris, I have long been concerned with the expectation 
placed on educational institutions to investigate and 
adjudicate violent crimes at all. Allegations of sexual assault 
should be investigated and adjudicated solely by the criminal 
justice system. Even the best campus adjudication processes are 
staffed by people who do not have the professional expertise to 
properly handle such cases.
    In your written statement you applaud the Department's 
regulation for returning the application of Title IX in these 
cases to its proper place. You observe the purpose of Title IX 
has historically been, and should currently be, the 
preservation of educational access for victims of 
discrimination.
    Unfortunately, the Obama Administration, and I guess my 
Democrat colleagues, have embraced an alternative view of Title 
IX. You articulate in your written statement where its purpose 
is to provide a second avenue for punishing criminals. Could 
you explain further how the Trump Administration's regulation 
properly refocuses Title IX on protecting the educational 
access and turns us away from the Obama Administration's 
insistence on turning Title IX into a quasi-criminal statute?
    Ms. Harris. Yes, thank you, Chairwoman Foxx.
    I believe that, you know, through a series of court 
decisions, you know, dating back 20 or 30 years, you know, 
sexual harassment, including sexual assault, are considered 
forms of sex discrimination that schools have to address under 
Title IX. So Title IX does require schools to have mechanisms 
in place for adjudicating these cases. And I think that by 
adopting important due process protections this new rule 
ensures that those proceedings will be fair and will reflect, 
as you say, the quasi-criminal nature of the allegations and 
the seriousness of the allegations.
    But I also think that by the focus on supportive measures 
and by other features, such as the availability of informal 
resolution and the scope of jurisdiction that the Court set 
forth in the Davis case, it does restore also the focus, as you 
say, to the access to education. Because that is really what 
this is about. I mean Title IX is not an all-purpose law 
prohibiting all sexual misconduct. You know, we have laws 
prohibiting sexual misconduct and whether those laws are 
properly enforced or whether more needs to be done to enforce 
those laws fairly for the benefit of survivors is a different 
discussion. But Title IX is a limited jurisdiction law that 
relates to educational access. And so I think that by, you 
know, defining it, you know, defining both the definition of 
harassment and the scope of jurisdiction in accordance with the 
Court's decision in Davis and by focusing on the supportive 
measures that will allow a complainant, whether or not he or 
she brings a formal complaint, to continue to have that 
educational access, this new regulation does, as you say, 
restore that focus.
    Mrs. Foxx. Thank you.
    Ms. Harris, some critics of the regulation have argued that 
vigorous due process protections and clear standards are 
unnecessary and even inappropriate in campus judicial 
proceedings because the stakes are lower than they are in the 
legal proceeding. It is really foreign to me how they can feel 
that way.
    Do you agree the stakes in campus judicial proceedings are 
such that campuses can dispense with our country's traditional 
understandings of basic fairness, clarity, and objectivity? Why 
or why not?
    Ms. Harris. No, I don't. I mean it isn't a criminal court 
and no one has argued that a campus judicial system needs to 
have all of the protections of a criminal court. But as 
numerous federal and state courts have recognized, you know, 
finding someone responsible for sexual misconduct, even on 
campus, has serious and life altering effects, as it should if 
the person is responsible for sexual misconduct--as it should. 
But that is why we need full and fair procedures to determine 
whether someone is actually responsible because, you know, 
failing to recognize that the stigma of being, you know, 
labeled a sex offender even on campus has those serious and 
lifelong consequences, and I could tell you stories--but I have 
30 seconds--of some of those consequences. You know, it fails 
to take into account the seriousness of the allegation. And I 
think, you know, providing these protections, which again are 
not commensurate with those found in a criminal court, but 
which are higher than would be found for, you know, say a 
plagiarism allegation, reflects that fact that schools are by 
necessity adjudicating what really are quasi-criminal 
allegations.
    Thank you.
    Mrs. Foxx. Thank you very much.
    Thank you, Madam Chairman. I yield back.
    Chairwoman Bonamici. Thank you, Mrs. Foxx.
    And I will now recognize myself for five minutes.
    Ms. Frye, in response to the Bostock decision, your 
testimony is urging the Administration to take immediate steps 
to ensure that its policy positions are in line with the 
Court's ruling, including reversing course on its ongoing 
efforts to deny protections to LBGTQI+ individuals.
    Will you please elaborate on the policy areas that need to 
be modified in light of the Court's ruling?
    Ms. Frye. Yes, absolutely. And I think I, along with the 
co-panelists spoke to a number of them. I think, you know, 
certainly you start with the memo that was--guidance issued by 
DOJ to U.S. Attorneys across the country seeking to take a 
different position in Title VII cases that has now been 
countered by the Supreme Court. But there are many areas in 
education, in housing, in terms of access to things like 
domestic violence shelters, in healthcare, and certainly in 
employment, a number of areas where the Administration 
continues to pursue rules and guidance that would limit the 
access of protections to LGBTQ workers and also folks of 
religious institutions--or educational institutions and other 
areas.
    So I think it is a moment for that to be a full stop, and 
to issue across the board to all of the agencies that they must 
comply with Bostock and they must also comply with the spirit 
of Bostock. I think that is the first start.
    Chairwoman Bonamici. Thank you so much.
    Ms. Buchert, just days after Bostock was decided, as we 
heard in testimony, the Department of Health and Human Services 
finalized its section 1557 rule rolling back non-discrimination 
protections. And then within a matter of weeks, two Federal 
Courts had enjoined portions of the rule, relying heavily on 
Bostock. Specifically the case decided on September 2 in the 
D.C. Circuit, Judge Boasberg highlighted in his opinion that 
the rule was finalized even without pausing to consider the 
Court's decision. The Department's 89 page final rule does 
not--did not even acknowledge Bostock's holding.
    So will you please explain how the rule is inconsistent 
with Bostock?
    Ms. Buchert. Yeah, absolutely. Sure. The rule is--well, the 
Court enjoined it because they found it was arbitrary and 
capricious to not even mention the Bostock or grapple with the 
decision in any way. But it is inconsistent with federal law. 
This isn't--you know, Bostock, you know, is a culmination of a 
lot of work that has been done for over 20 years to establish 
protections for LGBTQ or to clarify that LGBTQ people have 
protections under a variety of federal laws, including Title 
VII and Title IX, the Equal Credit Opportunity Act, and other 
statutes. And HHS conceded itself, I guess before they knew the 
decision was going to come out the way they didn't expect it 
to, that Title VII and Title IX are read consistently. And 
people probably know this, but Title IX is one of the four 
statutes that underlies the non-discrimination provision of the 
section 1557 and they should be--and even actually acknowledge 
that Title VII should inform Title IX, but went ahead and 
issued the decision anyway.
    And we have seen already decisions that have been issued 
since the Bostock decision addressing, you know, the question 
of whether and how Bostock would apply. And aside from the 
injunctions that have been issued in the D.C. case and the New 
York case, you know, clarifying that they should have grappled 
with it--they have had decisions on the merits of Title IX with 
the additional threshold of addressing the question of whether 
it applies to sex segregated spaces. And in the case that 
Lambda Legal brought in the 11th Circuit, the 11th Circuit held 
that it is discrimination under Title IX to prohibit a 
transgender boy from using the boy's restroom and they cited 
Bostock using the same reasoning. Similarly, in the 4th Circuit 
a decision was recently issued with the same reasoning.
    Chairwoman Bonamici. And I am going to put this question 
out there, but I might need to get your response in writing.
    So, according to a study last year by the Center for 
American Progress, in this Administration, the Department of 
Education's Office for Civil Rights was more than nine times 
less likely to take corrective action on sexual orientation and 
gender identity related complaints than under the Obama 
Administration. They are investigating fewer sexual orientation 
and gender identity related complaints, even though the overall 
number of complaints has increased.
    So after this report I led a letter with several of my 
colleagues to OCR demanding information about their policies 
for processing sexual orientation and gender identity related 
complaints.
    Unfortunately, but not surprisingly, the response I 
received was inadequate. It left many of our original questions 
unanswered and necessitated follow up. So without even seeing 
the requested documentation we know that this Administration 
has repeatedly failed to protect the civil rights of LGBTQ 
students.
    So I will ask you to submit for the record your response to 
that question about what should the Administration be doing to 
protect LGBTQ students.
    Because my time is up I will ask you to submit that for the 
record.
    And without objection I would like to enter the following 
statement and reports into the record: a letter from 
Representative Raskin and myself to Secretary DeVos urging her 
not to finalize the uniform administrative requirements rule 
which would expand religious discrimination against students in 
higher ed, and open letter from education civil rights leaders 
regarding civil rights of LGBTQ students in light of the 
Bostock decision, a statement from the U.S. Commission on civil 
rights, calling on the Trump Administration to revise their 
regulations and enforcement practices to comply with Bostock, 
and, finally, a letter from the Gay, Lesbian, Straight 
Education Network expressing concern about the Education 
Department's ongoing attacks against LGBTQ students. I am 
submitting those for the record without objection.
    And next I am going to recognize, I believe, Mr. Johnson. 
Is that correct? Or Mr. Cline?
    Mr. Cline. Mr. Johnson please.
    Chairwoman Bonamici. Mr. Johnson, you are recognized for 
five minutes for your questions.
    Mr. Johnson. Very good. Thank you, Madam Chair.
    My questions are for Ms. Harris. And I am going to pick up 
where Dr. Foxx left off, talking about this traditional basket 
of protections that participants in American adjudicatory 
settings so often have. And I will start with the discussion 
about this live hearing. That has undergone some criticism with 
concerns that maybe the potential victim, the complainant, 
could be subject to intimidation or harassment. You addressed 
some of this in your written testimony, I believe, but talk to 
us a bit--do you think the rules by the Department of Education 
struck the right balance in protecting complainants while 
ensuring fairness in the process?
    Ms. Harris. I do think so, yes. And, you know, I think that 
the due process protections--you know, while we often talk 
about due process protections in terms of what they do for the 
accused, what they also do is protect the integrity of the 
process as a whole. And, you know, in cases that turn on 
credibility the opportunity to have a hearing, to have the 
decision makers hear from both parties in person and have both 
parties answer questions in real time, you know, that accrues 
to the benefit of both parties. I mean there is no question 
that when you are dealing with a sensitive topic like sexual 
assault, any kind of proceeding is going to be difficult. And 
no matter how--and any kind of proceeding could be conducted 
with or without sensitivity. An investigation only could be 
conducted in a sensitive or insensitive way. A hearing with 
cross-examination could be conducted in a sensitive or 
insensitive way. And I believe that it is incumbent upon every 
institution, however they are conducting these things, to 
conduct them in a sensitive way, but that can't mean 
compromising fundamental fairness. And, you know, courts have 
begun to consider what due process means in this context.
    Prior to 2011, you know, that law had not been super well 
fleshed out. We knew that public university students, in facing 
suspension or expulsion, were entitled to due process, but what 
that meant--you know, what that means is relatively case 
specific and has to be fleshed out sort of incrementally. And 
in the past years it has been fleshed out a lot and what an 
increasing number of courts have held is that in this context, 
when credibility is at stake, a live hearing with some sort of 
opportunity for cross-examination is in fact a critical element 
of due process.
    Mr. Johnson. And, Ms. Harris, that makes sense to me. And, 
you know, in a past life I was a fact finder, a public 
utilities commissioner. And I want to make it clear I am not in 
any way comparing that kind of contested case environment to 
one where sexual harassment is at the heart of it. I can't 
imagine the trauma that a victim experiences.
    But it does seem to me that when you talk about serving the 
process and making sure that the right facts come to light, as 
a fact finder I routinely would note that I think the process 
was better served in a real time examination of the facts and 
that all parties I think were better able to help the fact 
finder identify and illuminate these key issues.
    So what you are saying makes sense to me.
    And we have talked about protections for--or due process as 
relates to the accused, but there are also some additional 
protections, as I understand it, for the complainant. Could you 
talk a little bit about those?
    Ms. Harris. Well, sure. So one protection relates to the 
use of medical records and provides that medical records can't 
be used in a proceeding without a party's explicit consent. And 
there are times--I mean there have been cases where medical 
records might be central to a case. You know, questions evolved 
about, you know, how a medication might have interacted, for 
example, with alcohol in a way that the other party may not 
have been able to recognize. And so, you know, this is 
something that could in some ways harm the fact finding process 
because the medical information may be relevant, but the 
regulations provide that, you know, without a party's consent 
that type of sensitive medical information can't be disclosed.
    I also truly believe that the option for informal 
resolution--which was something that the previous 
Administration had precluded in cases involving any physical 
misconduct--I truly believe that, you know, so long as 
universities, you know, follow the regulation's instruction 
that they may only be used with the consent of both parties, 
you know, without any type of coercion, that gives control back 
to victims, you know, who may not want themselves to go through 
a whole full process, but who may want some sort of reckoning 
or accounting for what has happened.
    Mr. Johnson. Thanks, Ms. Harris.
    Thanks, Madam Chairman. And I yield back.
    Chairwoman Bonamici. Thank you, Mr. Johnson.
    Next I recognize Mr. Grijalva. Is Mr. Grijalva with us? I 
don't believe so. Ms. Fudge? Nope. Dr. Schrier? It is hard 
visually because I can't--okay, I don't see Dr. Schrier. Okay, 
I know Ms. Hayes is here. I recognize Ms. Hayes for five 
minutes for your questions.
    Mrs. Hayes. Thank you, Chairwoman Bonamici. Can you hear 
me?
    Chairwoman Bonamici. Yes, we can hear you.
    Mrs. Hayes. Okay, thank you. And thank you to all of the 
witnesses who are here today.
    As has been mentioned by this committee, Connecticut is 
currently fighting to protect our students from the Department 
of Education with the express purpose of protecting, uplifting, 
and educating all students. Despite the Supreme Court's hearing 
that federal civil rights laws prohibiting discrimination on 
the basis of sex protects transgender individuals, this 
Department of Education is threatening to withhold and redirect 
millions of dollars in magnet school assistance program funds 
because Connecticut school districts are abiding by a state 
policy of the CIAC to allow transgender youth to participate in 
accordance with their gender identity. This is congruent to the 
Supreme Court's June opinion in Bostock versus Clayton County. 
These grants are specifically designed to assist in 
desegregation, promotion of diversity, and equitable education 
for all students in public schools. This is particularly 
devastating in Connecticut, which remains one of the most 
educationally segregated states in the country.
    Before I--I just want to say there is a whole lot about the 
journey of transgender youth that I don't understand. I don't 
understand, you know, gender identity and expression and how it 
presents itself at different ages, but what I do understand is 
discrimination and the fact that these are somebody's children. 
And it is our job to protect these children. And federal 
funding should not be contingent upon that protection.
    So my question for you, Ms. Graves, as an educator I came 
to this committee from the classroom and I can only imagine 
what teachers are dealing with as they have to uphold and 
defend some of these decisions.
    Ms. Graves, last week OCR refused to recognize that the 
Bostock decision has any bearing on Title IX and the rights of 
students. Can you provide some context for what legal ground, 
if any, this Administration can rely on to support such a 
decision?
    Ms. Goss Graves. I just want to begin by saying I also am 
deeply worried about our youngest students and the message that 
this Administration is sending to them and that some of their 
schools in turn will send to them.
    You know, it has been 3 months since we had the decision in 
Bostock and in that time we have already had a 4th Circuit 
decision be clear that ban on sex discrimination includes 
gender identity discrimination. So what you would expect the 
Department of Education to be doing--and frankly we have joined 
with members of the civil rights community, asked the 
Department of Justice to do this across the board--is to be 
clear that the Bostock decision application in terms of the 
meaning against sex discrimination has important consequences 
for education, but also for housing and for healthcare.
    Unfortunately, the Department of Education is doing the 
opposite. It is not only not clarifying that ban on sex 
discrimination includes gender identity and that transgender 
students are protected, is taking this extraordinary step of 
continuing to go after these entities in Connecticut for having 
inclusive policies for transgender students. So it is an 
outrage and totally turning Title IX on its head.
    Mrs. Hayes. Thank you. As you mentioned, I am deeply 
worried about this enforcement decision and I know that what 
Connecticut is experiencing will ripple out into the rest of 
the country. And the fact that federal funds are now being 
contingent upon allowing students to participate or not to 
participate is concerning for me, to say the least. And I think 
it is a precursor to what we can expect. I don't think any 
child or any parent would open themselves up to this type of 
scrutiny for a sports medal, to say the least.
    Can you just provide just some context, has this idea of 
the immediate revocation of funding been--I feel like 
Connecticut is being attacked disproportionately. Have similar 
cases been decided in the same way?
    Ms. Goss Graves. I have to be really clear on this point, 
it is a highly unusual step to actually take measures to remove 
federal funds, in part because the Department has so many other 
tools to use that you don't see it. But so to have this very 
rare--and there may have been one other example over the last 
50 years where this has happened. It is unusual.
    Mrs. Hayes. Thank you.
    Madam Chair, I yield back.
    Chairwoman Bonamici. Thank you, Ms. Hayes.
    Next I recognize Ranking Member Cline for five minutes for 
your questions.
    Mr. Cline. Thank you, Madam Chair.
    Ms. Harris, as you noted, there has been a lot of criticism 
leveled at the Department for how it chose to define sexual 
harassment under the regulations. But in your written statement 
you noted that the Supreme Court opinion that established that 
definition was authored by Justice Sandra Day O'Connor and 
joined by Justices Ginsberg, Souter, Stevens, and Breyer. Most 
have not read that opinion. Could you explain a little bit more 
about the Court's rationale for establishing that standard and 
why that standard is still appropriate?
    Ms. Harris. Yeah. Thank you.
    So in the Davis decision, you know, the Court had to 
balance school's obligation to prevent harassment with school's 
obligation to uphold, you know, particularly in the public 
school setting, the First Amendment rights of students. And it 
also had to recognize--you know, the opinion exclusively 
recognizes that, you know, school, particularly in the K-12 
setting is a place where students are learning how to interact 
with one another and are going to, you know, insult and offend 
one another and that you can't--you know, to have a functional, 
you know, system, it can't be that every act of name calling 
among children in school rises to the level of harassment.
    So when the Court, you know, crafted this severe, 
pervasive, and objectively offensive standard, what they were 
really focused on is access to education. It is not just a 
question of, you know, has something happened that has hurt or 
offended someone on the basis of sex, it is has someone's 
access to education been limited or denied on the basis of sex. 
And that is really where that standard comes from.
    And, you know, it is interesting, as you note, that the 
majority opinion was authored by Justice O'Connor and joined by 
the Court's liberal majority. And Justice Kennedy actually 
wrote a really strong dissent in which he expressed concerns, 
you know, that even the Davis standard was insufficiently 
protective of free speech and was going to sort of going to 
open the floodgates. So in a way it is ironic that the Davis 
decision has come to be seen as this, you know, sort of extreme 
definition when really at the time that it was crafted it was 
viewed as, you know, the appropriate balance between the need 
to prevent harassment in schools and ensure that educational 
access is not denied on the basis of sex or based on sex 
discrimination with the need to, you know, protect free speech 
and to allow students, you know, to learn sort of the rules of 
engagement, so to speak, particularly in the K-12 context.
    Mr. Cline. You also addressed the criticisms leveled at the 
jurisdictional limits to campus adjudication of sexual 
harassment allegations under the regulation and you point out 
that the Supreme Court said that an institution's liability 
under Title IX is dependent on the degree of the institution's 
control over both the harasser and the environment in which the 
harassment occurs. In other words, a school becomes liable or 
potentially liable when it exercises some control over both the 
accused and the location where the harassment occurs.
    Could you discuss in more detail how the Trump 
Administration's regulations strikes that balance and why that 
is a better approach than the previous Administration's 
guidance?
    Ms. Harris. Yeah. I mean so it is interesting, in the Davis 
decision, although the decision, as you say, related to 
liability, when talking about the jurisdictional limitation, 
the Court actually referred to the language of Title IX itself, 
of the statute itself, and said that, you know, the statute by 
its plain language cabins a range of misconduct that can be 
addressed.
    Because, again, you know, we have laws in this country 
prohibiting sexual misconduct. You know, if a student commits 
sexual misconduct or commits rape off campus, that student has 
violated the law. Now, again, it is a whole separate 
conversation about how those laws are enforced and whether they 
are being well enforced. But Title IX is a statute about 
educational access and, as such, you know, the Court held that 
the plain language of the statute requires this nexus to the 
institutions, such that the institution at some point exercises 
control both over the harasser and over the environment in 
which the harassment occurs. And, you know, in this instance, 
the Administration is really just going back to what the Court 
said about the statute's plain language. I would argue that it 
is not really in the Department's authority to do anything 
else.
    Mr. Cline. Thank you. And in the little time I have left, 
you noted that it was the last Administration that departed 
from the Supreme Court's precedent and long standing Department 
guidance on the definition of sexual harassment and that the 
Obama Administration's definition was extraordinarily broad and 
at odds with the First Amendment. Can you explain a little more 
about why you would say that?
    Ms. Harris. Well, yes. Any unwelcome conduct of a sexual 
nature, including verbal conduct, which for the definition 
includes a lot of--includes in addition to actual harassment, a 
lot of speech protected by the First Amendment.
    Mr. Cline. Thank you.
    I yield back.
    Chairwoman Bonamici. Thank you, Ranking Member Cline.
    And next I recognize Representative Trone for five minutes 
for your questions.
    Mr. Trone. Okay. Thank you very much, Madam Chairman, for 
holding this hearing.
    Let us start with Mrs. Frye. EEOC recently issued a 
proposed rule to increase employer participation and 
conciliation efforts. And in your view does this strengthen, 
weaken EEOC's enforcement authorities? Who are the winners and 
losers in this rule making?
    Ms. Frye. Well, it is a great question. You know, there is 
some history behind this rule and this rule making. And part of 
that history is that while it is important for conciliation to 
happen and to be able to try to resolve complaints before they 
go to litigation. The rules previously, many employees were 
trying to essentially delay the ability of the EEOC to actually 
move forward with the case. And they would argue that they 
hadn't actually done all the steps for conciliation. And the 
issue was litigated in the Supreme Court and the Supreme Court 
said in a decision Mach Mining v. EEOC that the EEOC was not 
bound by a specific rubric that was required to conciliate and 
that the rules were much more deferential to what the EEOC--as 
long as they were operating in good faith.
    And so the concern here is that this rule making could 
resurrect this notion that there has to be a specific set of 
procedures that the EEOC goes through in order to be able to 
litigate. And it is really a delay tactic that ultimately hurts 
litigants and particularly workers who are in need of 
protection. That is the concern.
    Mr. Trone. Exactly. Let us jump, Ms. Frye, to salary 
transparency. It is an interesting area. Can you help us to 
identify, you know, where these--looking at where barriers 
exist and at the same time we don't want to eliminate merit, at 
the same time. So your testimony discussed the model of the 
United Kingdom requiring large employees, 250 or up, to 
publicly disclosed gender pay gaps. Can you explain how this 
system would work--and you think it could be successfully 
adopted in the U.S.? And how would you see it implemented here, 
but still not to take away merit
    Ms. Frye. Well, absolutely. I think, you know, what we have 
learned in the UK is that for employers with 250 or more 
employees they are now required to report their pay gap. And 
they actually do it by, I think it quartiles. And it is a way 
of giving other people better information, employees 
themselves, so they can make good decisions. And it also 
incentivizes employers perhaps to look closely at their 
practices and take corrective measures. And I do think we ought 
to be thinking about whether or not a rubric like that would 
work here and to complement enforcement that is already being 
done and the work that employers do on their own to look at 
their pay practices. It could be a legislative measure that 
Congress pursues or something collaborative with the 
Department. But I definitely think it is worth looking at.
    Mr. Trone. Okay, great.
    One of the provisions of the Fair Pay and Safe Workplaces 
Executive Order, which Trump rescinded, you know, prohibiting 
contractors requiring employees to sign, you know, pre-dispute 
arbitration agreements for discrimination claims and torts for 
sexual harassment and assault. Again, who are the winners and 
loser in this one?
    Ms. Frye. Well, you know, the purpose of that is--you know, 
more than 50 million workers are covered by arbitration 
agreements and what that does is that limits their ability to 
vindicate their rights under the laws that many of us are 
familiar with like Title VII. And so the Fair Pay and Safe 
Workplaces Executive Order was really designed to limit the 
situations where that occurs so that workers who are, you know, 
already in a challenging situation in terms of bringing cases 
are not unfairly hindered in their ability to vindicate their 
rights under the law.
    That is why that provision was so important. And it 
basically said that you can't require people before dispute 
arises to say that they are going to take their case somewhere 
else.
    Mr. Trone. And so, once again, our workers got the short 
end of the stick?
    Ms. Frye. Yes, sir.
    Mr. Trone. Thank you, ma'am.
    I yield back.
    Chairwoman Bonamici. Thank you, Mr. Trone.
    Mr. Cline, do you have other members present? Mr. Thompson 
perhaps?
    Mr. Cline. It does not appear that Mr. Thompson is here, 
so--
    Chairwoman Bonamici. I recognize Ms. Lee for five minutes 
for your questions.
    Mrs. Lee. Thank you, Madam Chair, and thanks to all of our 
witnesses for joining us today to discuss these very important 
issues.
    First, I want to acknowledge that there has been a lot of 
jargon, legal jargon and acronyms thrown around today, but to 
be frank, quite honestly, we are speaking about one plain and 
simple principle, and that is equality. And we have heard today 
about many ways in which Secretary DeVos and this 
Administration have worked to weaken, rollback, remove any key 
civil rights protections, particularly for LGBTQ individuals 
and women. And as someone who has spent my career working among 
our most vulnerable populations in Nevada's public schools, I 
would like to first focus on how these actions are hurting 
students, particularly students that are at high risk of 
falling behind or dropping out or even worse.
    Ms. Goss Graves, as we discussed today, in 2017 Betsy DeVos 
rescinded key guidance that secured the rights of transgender 
students, leaving transgender students now more vulnerable to 
ongoing discrimination at school.
    Can you speak to how this rescission of the guidance does 
just that?
    Ms. Goss Graves. Well, the first thing to know is that 
transgender students are more likely to experience 
discrimination and harassment in school, and study after study 
has shown that. And that the harassment that they experience 
that when they do go forward they are less likely to be 
believed or told to change who they are rather than having the 
schools enforce their rules. So we are already starting out at 
a place that is worrisome.
    But the combination of the message that the Department of 
Education is sending, that they don't really have to do what 
they need to do with the Bostock decision, plus the change in 
the Title IX sexual harassment and violence rules, could have 
devastating effects, especially for all LGBTQ students, but 
transgender students in particular.
    Mrs. Lee. Thank you. I would also like to break down the 
Bostock Supreme Court decision that we have heard a lot about 
today and how that decision contrasts with this 
Administration's policies regarding gender discrimination.
    As you all know, this past June the Supreme Court confirmed 
that the Civil Rights Act protects transgender workers from 
discrimination because of sex, much in the same way that Title 
IX has been interpreted to protect transgender students. One 
would logically conclude that this decision settles the matter 
regarding the inclusion of gay and transgender individuals 
protected under anti-discrimination laws that afford 
protections based upon sex. And this decision is in stark 
contrast to the Administration's position that Title VII of the 
Civil Rights Act does not protect discrimination based against 
sexual preference and gender identity.
    Ms. Frye, in response to the Bostock decision you have 
urged this Administration to ``take immediate steps to ensure 
that its policy positions are aligned with the Court's ruling, 
including reversing course on its ongoing efforts to deny 
protections to LGBTQI+ individuals''. What are some of the 
policy areas that need to be modified in light of the Court's 
rulings?
    Ms. Frye. Well, I think, you know, where we start is making 
sure that the Administration is clear across all the agencies, 
that the Bostock decision does indeed say that sex 
discrimination should be read broadly to encompass the rights 
of LGBTQI workers. And really that then sends the message that 
from education to housing to employment, all of these areas 
that they continue to push these types of rules, they need to 
fundamentally reverse course.
    It also means litigation. You know, we didn't mention that 
they continue to intervene in cases where they have advanced 
arguments that now the Court has said are not valid.
    So I think it is really a full stop on all of these efforts 
and to make clear that across the board they to rethink how 
they are interpreting sex discrimination.
    Mrs. Lee. Thank you so much. And, again, I just want to 
make sure that we continue to focus that the key issue here is 
not lost in the legal jargon. Simply put, this is about 
equality for every student, worker, parent, and child.
    And so thank you, Chairwoman, for having this important 
conversation, and all the witnesses.
    And I yield .
    Chairwoman Bonamici. Thank you, Ms. Lee.
    I believe we are--is there any other Member present who is 
not on the subcommittee? It appears not. Well, I want to remind 
my colleagues that pursuant to committee practice, materials 
for submission to the hearing record must be submitted to the 
Committee Clerk within 14 days following the last day of the 
hearing, so by close of business on September 24, 2020, 
preferably in Microsoft Word format. I do know there will be 
some additional questions for the record, including asking for 
a follow up on the interpretation of the Davis case. I know 
that one will be coming, as well as others. The materials 
submitted must address the subject matter of the hearing. Only 
a Member of the subcommittee or an invited witness may submit 
materials for inclusion in the hearing record. Documents are 
limited to 50 pages each. Documents longer than 50 pages will 
be incorporated in the record via an internet link that you 
must provide to the Committee Clerk within the required time 
frame, but please recognize that years from now the link may no 
longer work.
    Pursuant to House Resolution 965, and accompanying 
regulations, items for the record should be submitted 
electronically by emailing submissions to 
[email protected]. Remember, offices are 
encouraged to submit materials to the inbox before the hearing 
or during the hearing at the time the member makes the request. 
The record will remain open for 14 days per committee practice 
for additional submissions.
    So, again, I want to thank the witnesses for their 
participation today. It has been very informative. Members of 
the subcommittee may have additional questions for you. I know 
that there will be some particularly about the Davis 
interpretation. We ask the witnesses, please response to these 
questions in writing. The hearing record will be held open for 
14 days to receive those responses and I remind my colleagues 
that pursuant to committee practice, witness questions for the 
hearing record must be submitted to the Majority Committee 
Staff or Committee Clerk within 7 days. The questions submitted 
must address the subject matter of the hearing.
    Now, I recognize the distinguished Ranking Member, Mr. 
Cline, for his closing statement.
    Mr. Cline. Thank you, Madam Chair. I appreciate you calling 
this hearing. I want to thank the witnesses for offering their 
expertise today. I do want to reiterate that is a wide ranging 
hearing and it is unfortunate we only had one witness to cover 
such a broad--she ably covered all the topics, but would have 
like to have had a little bit more opportunity to have more 
witnesses.
    On the issue of the Department's regulation with respect to 
how schools adjudicate sexual harassment claims under Title IX, 
I want to reiterate just a few points.
    First, on a really sensitive and potentially divisive 
issue, it is noteworthy that individuals across the spectrum 
have supported the Trump Administration's actions. And that is 
pretty unprecedented in the current climate. And, second, I 
want to highlight the earlier discussion between Ranking Member 
Foxx and Ms. Harris. It seems the core of the disagreement is a 
difference of opinion on the purpose of Title IX. Nobody is 
arguing that perpetrators of sexual violence should not be 
punished. I am a former prosecutor and I understand that 
criminals should be punished to the full extent of the law. But 
Title IX exists to protect students' access to the educational 
environment, and I applaud the Trump Administration for 
restoring the purpose of Title IX through this regulation. It 
offers clarity based on court precedent and protects the rights 
of students, it protects the rights of respondents--yes, 
consistent with the emerging case law.
    But it also protects the rights of survivors, and that is 
critical. One thing we learned today is that survivors of 
sexual assault were poorly served by the last Administration's 
mess of the Title IX in this space. I applaud the Trump 
Administration for correcting those errors.
    Madam Chair, thanks again for holding this hearing. I am 
honored to be a member of the subcommittee and I look forward 
to working with you in the future and I yield back.
    Chairwoman Bonamici. Thank you, Ranking Member Cline.
    And I now recognize myself for the purpose of making my 
closing statement.
    I want to thank our witnesses for sharing your expertise 
throughout the hearing. Today we examined the full scale on 
effects of the Trump Administration's attacks on gender based 
civil rights. We discussed--and it is a broad issue and a broad 
topic, but very important--we discussed how the Administration 
has undermined protections for transgender students and sexual 
assault survivors. We reviewed how the Administration has 
stripped civil rights protections from LGBTQ workers and halted 
our progress in addressing pay disparities based on gender, 
race, and ethnicity.
    We discussed how the President has attempted to eliminate 
patient protections for women and LGBTQ community in the middle 
of a global pandemic.
    These issues are not merely policy disputes. These civil 
rights protections are about preserving dignity and securing 
the inherent inalienable rights of every American. When our 
government allows, and in fact even endorses, discrimination 
against certain individuals it sends a message about their 
value in our society. It says you are not worthy of a quality 
education, a good paying job, or vital healthcare services 
because of who you are. That is unacceptable.
    We must be a Nation where everyone, no matter what they 
look like, who they are, or who they love, can live free from 
discrimination. This principle has been the foundation of our 
Nation's civil rights laws for decades.
    I look forward to working with members of this committee to 
repair the damage done over the last 4 years and to create a 
more inclusive Nation that truly achieves liberty and justice 
for all.
    Thank you again to our witnesses for being here and to all 
the members who participated.
    If there is no further business, without objection, the 
subcommittee stands adjourned.
    [Additional submissions by Chairwoman Bonamici follow:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    [Whereupon, at 1:59 p.m., the subcommittee was adjourned.]

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