Both/And: A Sexual Violence Prevention Podcast
Both/And: A Sexual Violence Prevention Podcast
Protecting Title IX with Shiwali Patel
What would you do if a house is on fire and the firefighters on the scene not only refuse to put it out, they joyfully add fuel to it while joking about how great it was to start the fire in the first place? After talking with today’s guest, Shiwali Patel, Senior Director of Education Justice at the National Women’s Law Center, about protecting students under Title IX, this is the scenario that came to mind for me. Thankfully, when faced with the endless challenges of navigating systems that are being increasingly weaponized against the very people they were meant to protect, Shiwali doesn’t run from the fire. She is equipped with years of experience, a deep well of passion, and a belief that even as systems are falling apart around us, we can still make meaningful change and protect students.
Shiwali Patel (she/her) is the Senior Director of Education Justice at the National Women’s Law Center where she oversees advocacy addressing sex-based harassment in schools and works to strengthen civil rights protections for LGBTQI+ students and advocates broadly for civil rights in education. Previously, she was at the U.S. Department of Education’s Office for Civil Rights (OCR), where she worked on policy and guidance interpreting Title IX protections, including schools' responsibilities in responding to sexual harassment, protections for transgender students, and the rights of girls of color. Shiwali was also an Administrative Judge at the U.S. Department of Energy, a Special Assistant U.S. Attorney in D.C. in the Sex Offense and Domestic Violence Unit, a judicial law clerk, and a community educator at the D.C. Rape Crisis Center. Shiwali currently serves as the Co-Chair of the Leadership Conference on Civil and Human Rights’ Education Task Force and on the Board of Directors of Callisto. She is also an adjunct professor at American University where she teaches Gender and Law, and Sex Discrimination in Education at the law school.
Links:
The Lawyer who Can’t Let it Go
Defending Trans Women’s Rights
The Midlife Crisis of Title IX
The Proposed Title IX Rules Make No Practical, Moral, or Legal Sense
Years Later, We Must Amend Title IX to End Sex-Based Harassment in Schools
Ending Sexual Violence 50 Years After Title IX
Both/And is a project of the New Mexico Coalition of Sexual Assault Programs. www.nmcsap.org
Need support? Call, text, or chat the NM Sexual Assault Helpline at 1-844-NMSAHLP | 1-844-667-2457 | www.nmsahelp.org
Intro music: "Can't Get Enough Sunlight" written and recorded by Michelle Chamuel http://michellechamuel.com/
Logo: Alex Ross-Reed
Produced by: Jess Clark
Edited By: Dacia Clay at Pillow Fort Studios
https://www.pillowfortpodcasts.com
Welcome to Both and a Sexual Violence Prevention Podcast. I'm Jess Clark, Director of Prevention for the New Mexico Coalition of Sexual Assault Programs, and your host. What would you do if a house is on fire and the firefighters on the scene not only refuse to put it out, they joyfully add fuel to it while joking about how great it was to start a fire in the first place. After talking with today's guest, Shawali Patel, Senior Director of Education Justice at National Women's Law Center, about protecting students under Title IX, this is the scenario that came to mind for me. Thankfully, Shawali, when faced with the endless challenges of navigating systems that are being increasingly weaponized against the very people they were meant to protect, doesn't run from the fire. She's equipped with years of experience, a deep well of passion, and a belief that even as systems are falling apart around us, we can still make meaningful change and protect students. I hope you enjoy. You came to New Mexico to very high elevation to talk to our folks about Title IX. And I didn't realize this at the time when we brought you, but you were like the expert. When we were speaking with folks afterwards, not only did your sessions get really good reviews, but a couple of folks who knew who you were, they were like, You got Shawali here. They were so excited. So thanks for once again sharing your magic with us.
SPEAKER_00:That was such a wonderful conference. And you know, first, thanks for having me here. I'm really excited for our discussion. And I just loved being in New Mexico. It was like such a wonderful space. You really felt like the themes around healing and coming together as a community. And I just felt really grateful to be there.
SPEAKER_02:You were always welcome. We tried to shift that conference in a way that is kind of trying to reshape our identity as folks working in the sexual assault movement, is for so long we've been defined as doing crisis work, and we're trying to redefine that to doing healing work because really that's where the magic is. Um, yes, we respond to crisis, but if our default orientation is crisis, we're gonna be really limited. Whereas if our default orientation is towards healing, there's so much possibility there. So thank you for being a part of it.
SPEAKER_00:Yeah, I love that.
unknown:You know.
SPEAKER_02:So let's jump in. I want to know about you. I've spent the last few weeks reading all of your articles, and gosh, do you write a lot? It's great. I was like, dang, she is prolific. She writes all the things. Um, how did you come to this work?
SPEAKER_00:You know, it's been a really long journey. I feel very grateful to be able to do that the work that I do today as a civil rights attorney focused on the gender justice space, advocating for survivors at the National Women's Law Center. But I would say my interest on these issues, civil rights, equity, um, you know, supporting survivors, addressing gender-based violence, really started from a young age and just growing up knowing about issues of domestic violence, sexual assault, or what's happened in my community, you know, understanding the barriers that my family experienced coming from an immigrant family. Uh, my parents are from India for so long, felt really disempowered as a kid growing up. Like things are unfair, things aren't right, but yet it doesn't feel like we're able to do anything about it. And it wasn't until I was in high school and my older sister was in college, and she did a lot of advocacy. She volunteered at DV shelters, she brought clothesline projects to our school. She really kind of inspired me to become an activist. And that's where I learned that there are terms and work around a lot of the things that I experienced or witnessed growing up. And it made me feel less alone and it made me feel empowered to know that there are people that are fighting on these issues, that I could do something about it. When I started college, I joined different feminist activist groups. I did work around campus sexual assault. I'm a creative person, and so I made out the zine and you know, criticized the school's handling of sexual assault. And today I'm a Title IX attorney, but back then I didn't even know that Title IX addressed campus sexual assault. And yet the same issues that we were fighting against that and that we were advocating for our school to do by like not punishing survivors who reported sexual assault because they were intoxicated or high. You know, these are some of the same issues that students are still facing. So I did a lot of campus advocacy and then worked at a rape crisis center in DC. And um, I went into middle school, then I taught high school students about sexual assault. When I was at the rape crisis center, I did a lot of community organizing as well through DC and then met some attorneys who supported survivors and thought, okay, that's what I want to do. So then I applied to law school. And gosh, it's been 15 years since I've graduated law school, but have held various jobs and have now been at the National Women's Law Center for the last seven and seven plus years.
SPEAKER_02:I love one that I can tell we're the same age because you mentioned the Close Line Project, which I feel like is a formative experience for anyone who's been in this work for a while. And also because you mentioned zines, because that is how so many of us first start to express our discontent with the world is through the zine. And may it never be a lost start. I love that how your story started was with your sister modeling really positive things, which you don't get a lot of that from the older sister. Usually it's the older sibling that's doing all the things, and then you get to to follow in their footsteps on that. And so I love that your sister was engaged in a way that you saw as being really uh exciting and appealing. And then once you got to college, you started learning language and concepts for things that you already had experience with. You knew what sexism was, you knew what oppression was without necessarily having the language for it. And then you got to turn that around and do that with young people as you came into the profession. That seems to be a really common arc for many folks in this work. It's oh my gosh, I'm so glad there was some adult to help give me language for the world that I was experiencing and didn't know how to describe in a way that made sense to others, even though I know I knew it wasn't okay. And then knowing how important and powerful that was and being able to turn that around and give it to others, it's such an important thing.
SPEAKER_00:Yeah, absolutely.
SPEAKER_02:I came up through the rape crisis center here in Santa Fe when I was a teenager and interned in one of their programs that was an anti-homophobia, anti-transphobia, although we didn't say transphobia then because this was the late 90s, early aughts. And I got to then deliver the very programming that I had received when I was a young person when I first came on and then quick very quickly went, Why haven't we updated this programming in the last 10 years? Um then we updated it. But it was such an important and uh life-affirming thing to be able to do. And I wish that for everyone who wants it.
SPEAKER_00:Yeah, it's so amazing. And, you know, now that I'm like advocating for student survivors as part of my Title IX work, it's really come full circle because I do work with student advocates on campuses. And I think a lot back to my days as a student advocate and like the tools and resources that I had then, but that I also didn't and wish I had. So it is really great to see when things come full circle like that.
SPEAKER_02:I think because a lot of college students are also, it's the first time folks are entering the world and realizing, hey, I have a real voice, or I should have a voice in these systems, and I want to be able to make an impact on it in a way that is, I think, just a little harder to see in younger years. And once you get into college, folks, there are community groups saying trying to change things. And the last episode was with Jacqueline Friedman, and she talked about uh really, really shifting sexual assault policy at her college when she was there, and that it's been interesting to see that carried on through the years. And it's such an entry point for so many young people to start to believe that they get a say in their world. I want it to happen sooner, but it's great that it happens at all. So, with Title IX, can you take me through some of the history? Of course, this is a I'm gonna call Title IX a concept, a law that has has been around since what year?
SPEAKER_00:1972.
SPEAKER_02:And it's really evolved since then. Can you take us through some of that evolution?
SPEAKER_00:Yeah, Title IX has such a long history, and it's really, especially over the last decade, has gone through a lot. And I think there's much more awareness among students. I would say more so with college students, given a lot of the political battles that are happening today around Title IX. And, you know, I talked about what I did in college and how I didn't realize that Title IX addressed the issues that I was advocating on when I was pushing our school to do better around campus sexual assault. I always thought it was just about sports, which sports are a big part of it, and an important part Title IX, but it is so much. And the Title IX passed in 1972. And this is at a time when there was, there still continues to be discrimination, but a lot of discrimination occurring, primarily against women and girls in education. Women weren't uh given the same opportunities to be admitted to colleges or in certain programs on campuses, they were not given the same opportunities to play sports. Their participation was much lower than that than it is today, or the same access to scholarships and other resources to attend, harassment, which continues to be rampant, was also very rampant then. And so there were just a lot of barriers in education that Congress was trying to solve for when it passed Title IX, which the core language of the legislation or the statute, the law, right, that Congress passed is 37 words, but it is very, very broad. And, you know, it would say like the details about what Title IX touches is really found in the agency regulation. So Congress passes the law, the statute. And then in their law, they directed agencies like the Department of Education, any agency that gives money to educational institutions to issue regulations implementing Title IX. Now, an interesting, maybe fun, not so fun fact, fun for those of us who like to nerd out in Title IX, is that there are many federal agencies that enforce Title IX because they give money to schools, right? So the main one we hear about, especially in the news these days, is the Department of Education. Obviously, they touch Title IX, they enforce it. But there are other agencies like DOJ or Health and Human Services, Department of Energy, Agriculture, more, that because they provide funding for research and institutions, or agriculture provides money for free and reduced meals, right, for students. And there are so many different ways that schools or different agencies are giving money, then that means that as a condition of receiving that money from those agencies, these educational institutions, K-12 schools, colleges, and higher ed institutions, cannot discriminate based on sex. In 1975, the Department of Ed issued their regulations. And that is like much more expansive than the 37-word kind of main language of the statute. And it talks about how Title IX protects pregnant and parenting students, including students who terminate their pregnancies, right? So if a student gets an abortion, they can't experience discrimination. It doesn't say anything about the right to get an abortion, but more so the right to not be discriminated against if a student is getting one. The regs address athletics and what does equal opportunity to participate in sports mean? Or uh to get scholarships or access to housing. Title IX also protects employees and it addresses sexual harassment on campuses and other forms of sex-based harassment, admissions, and of course, protections for LGBTQI plus students. Over the years, there has been guidance and kind of explaining how Title IX applies to different types of sex discrimination. And a lot of this has come out of the Department of Education. And there have been lots of different guidance that especially came out under the Obama administration, addressing how Title IX applies to career and technical education, or guidance around pregnant parenting students, sexual harassment, other forms of sexual violence, protections for trans students. So it's again very broad in scope.
SPEAKER_02:Can you explain this to me? Because this is the this is something that I've always been really confused about. Maybe it's because I'm not a lawyer. My understanding is that when writing law, you either want to touch it as little as possible or as much as possible. So either get as as broad as possible or as specific as possible. And the in-between is where you get in real trouble. And so with Title IX, those 37 words were really broad. And then we have rules and regulations that where the actual rubber meets the road, and this is what it looks like in implementation. This is who it actually protects. And this is this is uh the meaning of these words, and that that's the broad nature is so important in that our world shifts so quickly. And if the actual law was written very specifically, that those definitions would have changed pretty quickly, and then you would have to go back and redo the law, which is very difficult. So having the rules and regulations be where it actually gets laid out is so great, and then it's it's counting on people to or administrations to do the right thing. It's counting on the administration's interpretation of the words that are on the piece of paper, which I didn't realize could be up for debate in such a huge way, what the actual words on the paper mean. Would it have been more helpful for Title IX to be written more specifically? Or are there any protections? Or is there anything we could do moving forward to make it so that the interpretation is not at the whim of each administration to so drastically shift so folks aren't having to entirely change how they approach this for every four to eight years?
SPEAKER_00:Yeah, you know, it doesn't benefit anyone to have these rights ping-ponging. It certainly doesn't help students, and it also doesn't help schools who then have to implement them and change their policies and train their employees to implement them, and it's a whole process. So we have talked about the need for cementing some protections through legislation to help prevent this ping ponging, and you know, in the context of sexual assault, but also clarifying through legislation what discrimination based on sex means. Because unfortunately, now that is, you know, there is a lot of fight about that under Title IX with an administration right now that is clearly very hostile towards LGBTQI plus rights and especially the rights of trans people and trans students, and trying to use Title IX to claim that it actually does not protect, and not even that, that it actually requires discrimination against trans kids. So having clear legislative text could then tie the hands of future administrations from, you know, changing the regulations or issuing their own interpretations of what they think should be the law. The problem is Congress is the way it is right now. And as with any civil rights legislation, I mean, a lot of these fights take years. And that doesn't mean we shouldn't begin. We should. We need to do that. We need to start socializing this, we need to start seeing this as a possibility, you know, putting forward that legislative vision. A few years ago, actually, we had worked on a bill that was introduced then by Senator Casey, who's no longer in the Senate, and we worked with the student survivor advocacy group uh called Know Your Nine. It was actually founded by Student Survivors about a decade or so ago. And we put together legislation called the Safer Act, Students Access to Freedom and Educational Rights Act that would amend Title IX, amend other civil rights laws that touch on education and broader, like Title VI, which covers race, color, national origin discrimination, Section 504 of the Rehabilitation Act, which covers Disability, Age Discrimination Act, to make clear what the standards are for addressing discriminatory harassment. That would also include sexual harassment and other forms of sexual violence. And to make sure that the standard is such that schools are treating this seriously, you know, and that they're taking the steps that they should be taking to effectuate the goals of these civil rights laws, which is to ensure that every student feels safe and welcomed on campus, because that's what you need. And not on just campus, K-12 schools, to have to have equal educational opportunity. So that is a solution, but again, it's a long term one at this moment. Really, what should be happening is that we shouldn't have administrations that are turning these laws on their head and interpreting these laws, including Title IX, in a way to use it as a weapon to harm vulnerable students. Like that is just antithetical too. The purpose of Title IX.
SPEAKER_02:That's really helpful. Thank you. I wish all of out so often on this podcast and in my work, it the answer always becomes, well, it's a long game. And it's gonna take a while. There are no overnight solutions. And just once I want there to be an overnight solution. It's just not happening, but that would be great. Is there anything locally that folks can do, like on the state level, that would be more protective or be more protective against those swings?
SPEAKER_00:Yeah, I mean, so Title IX as a civil rights law is a floor, right? So like states cannot provide fewer protections or cannot require schools to do less to protect uh students or protect civil rights than what the federal government requires. So there are states that have gone above and beyond, right? So now, you know, we're under the Trump administration. They've gutted protections for student survivors of sexual assault, are using Title IX to go against transinclusive policies in schools, right? But they're using this based on their own interpretation. They can't force states to comply with their interpretation of Title IX that violates state law. So there are some states that have pushed back, like you know, Minnesota that said, look, we have these laws on the books that require us to protect every student, including trans students. So when you're coming at us and saying, well, we have to comply with the Trump administration's executive order to ban trans kids from playing sports consistent with their gender identity, well, that violates our state law. And this is not a law that you're imposing on us. This is your executive order. You can't just like, you know, use the EO as a law. So I think there are ways, and states have been showing up and need to be pushing back and making very clear that they still have these protections despite what the federal government is doing. We've also seen that in the context of sexual harassment. And, you know, I mentioned the Federal Safer Act, but we also have model legislation for the states to have these protections in place in the states because, you know, just since the Trump administration has weakened the requirements around sexual assault, that doesn't mean that states can't impose greater requirements. So that schools are doing more to respond and to treat this issue with the seriousness that it requires.
SPEAKER_02:So here in New Mexico, a couple of years ago, after I think it took us five years to pass our affirmative consent bill, uh, it was originally K-12 and higher ed, and then it shifted to just higher ed that required affirmative consent be taught in all institutions of higher education in New Mexico, in addition to making it so that in the investigation process that affirmative consent was held as the standard when and when trying to determine was it consensual or not. And it took five years. It was really hard. And I, as I understand it, that's actually fairly short, all things considered. And so that law would that law would be our floor, not Title IX here in New Mexico. Great. So because our floor is higher than that floor, that is the subfloor, and we have the really nice knotty pine. I don't know about wood, that feels like a nice one. That is above that, that is what we're actually standing with. And those shifts through the years, as you were starting to talk about under Barack Obama's administration, President Obama's administration, what those shifts looked like and how they've how they've moved since then. Can you say a little bit more about that?
SPEAKER_00:You know, it wasn't under the Obama administration that we first had guidance actually addressing how Title IX applies to sexual assault. That actually started in 1997, which was then reissued in 2001. But despite the fact that the Department of Education, it was through their Office of Civil Rights at OCR for short, had this guidance, there wasn't a lot of enforcement happening when schools were not responding appropriately to sexual assault or other uh sexual harassment. Around like 2010 or 2011, there was a lot of reporting, like public reporting on how on campus sexual assault. And around that time, there was more pressure put on the Department of Education, OCR, to issue guidance to really make clear like what are the stuff schools should take in response to sexual assault. And so they issued a Dear Collie letter, or DCL for short, in 2011. And then during that time as well, there were student groups that emerged that were founded by student survivors of sexual assault, like No Year Nine, there was EROC and rape on campus, served justice. And these student survivor advocates began pushing or pressuring the Department of Education OCR to enforce their guidance and to issue more guidance because there still needed to be more clarification on how schools needed to respond. And in 2014, then the Obama administration issued additional guidance as a QA document that also made clear, like, you know, what happens if there was a take back the night on campus and a disclosure is made? Or, you know, what are different ways of confidentially reporting without triggering an investigation, given that, you know, we should be preserving survivor autonomy. And like, how do you kind of grapple with that? Some of the more sort of controversial clarifications that came out in the 2011 Dear Colleague letter was a clarification that schools in their investigations have to apply the preponderance of the evidence standard, which means that is it more likely than not when they're investigating complaint that um a sexual assault or harassment occurred. There was pushback by groups that advocated for often men, but accused students, primarily they were focused on college men who claimed it should have been a higher standard, even though schools often would use a more equitable standard. The other kind of shift was that the guidance did not prohibit schools from using direct cross-examination, but it recommended against direct cross-examination, given the fact that it could cause trauma and you know said schools should use indirect questioning. So you're not having someone's assailant directly question them during an investigation, for example. When the 2011 and 2014 guidance came out, there was a lot more enforcement by the Department of Ed. This was a good sign. It didn't mean there was more campus sexual assault happening, it just meant that more students were aware that they had rights and that if their school violated them, they've trusted the government to file a complaint with them for the government to investigate. This was met with a backlash. And, you know, the Trump administration won the election in 2016. I actually began working at OCR earlier in April of 2016 on Title IX policy. So I was there for part of this time. You know, when DeVos came in to then lead the Department of Education, they kind of quickly came in with this anti-civil rights agenda. They gutted guidance addressing protections for trans students, which wasn't even in fact for a year. And then they began rolling back this 2011 and 2014 guidance. And they kind of came in with this idea that, and I did not agree with this view, that you know, the pendulum swung too far, and now we need to correct it. And now college men are the victims here, and you know, we need to correct for these quote unquote due process violations that's harming college men, and also the false accusations, quote unquote, that they claim were so high. I mean, it was quite egregious. Like there was one moment where Candace Jackson, who once led, who led OCR during that time, was quoted speaking to the New York Times. This was, I think, in the summer of 2017, and she says something like, oh, 90% of the sexual assault complaints we get are like false accusations. Like this is like regret sex or someone who was angry at the person who wrote like something deeply offensive and just wrong, you know. And I think that said a lot about how they approached this issue.
SPEAKER_02:What was it like to work there during that time? How did you navigate that?
SPEAKER_00:I mean, it was a very challenging time, you know. Like I was working on sexual assault issues there, you know, and my colleagues were the ones who helped develop that 2011 and 2014 guidance. Like these are issues we cared about and approach and addressing them appropriately, you know, and very thoughtfully. So it was just so hard to come in and to see how they were just like deliberately misrepresenting what was happening around sexual assault, perpetuating rape myths and engaging with these men's rights groups. One of them was National Coalition for Men, and they used to post photos of women who've accused men of sexual assault on their website, you know, to invite harassment against them. Some of them oppose protections around domestic violence, around, you know, the Violence Against Women Act. Like those were like really egregious things. There was reporting that, you know, they helped develop these Title IX regs that weakened sexual assault protections that came out under the first Trump administration. So I eventually left in 2018, and that's when I joined the National Women's Law Center. We actually brought a lawsuit to stop those, the gutting of these protections for survivors. Uh, we represented some survivor advocacy organizations and student survivors and got a part of the rule uh vacated. But it was a a time, you know, and and so when uh Biden came in in 2024, they undid reverse some of these changes that came out in 2020 through Title IX regulations, restored some protections for survivors, and also clarified that Title IX protects LGBTQI plus students, that you know, discrimination based on sex includes sexual orientation based, gender identity-based, sex characteristics-based discrimination. And it also elaborated on some of the protections that pregnant students have. That was met with a lot of litigation. Unfortunately, that rule has now been vacated, and now we're back to Trump's earlier 2020 rights for uh sexual assault.
SPEAKER_02:So, what is the landscape right now in the current administration?
SPEAKER_00:When it comes to sexual harassment and assault, because there was a lot of litigation that challenged the Biden rule in 2024, and there were nine lawsuits, and two of them they were successful in getting the entire role vacated earlier this year. My organization is trying to intervene to bring back the survivor protection, so that's still in litigation. There's another group, public justice, they're representing a better balance to bring back the pregnancy protections. We're working we're representing Victim Rights Law Center. So we are back to the 2020 landscape for sexual assault and harassment for now. That doesn't mean students don't have protections, and we've have resources on our website that identifies like how you can still push your school to do more. We're also seeing, you know, as opposed to, you know, during the first Trump administration with those role changes, there's a lot of focus on sexual assault. Now we're seeing a lot of focus on using Title IX to harm trans students. And the Trump administration has unlawfully pushed schools into getting rid of their trans-inclusive sports policies or bathroom policies, other policies, claiming that uh to have inclusive policies violates Title IX and then threatening these schools by removing their federal funding and resources. And, you know, they're doing this at a time when uh half the staff, now more than half, I mean, their litigation is is is ongoing, have been gutted. OCR has lost a lot of staff. They still have so many complaints of actual discrimination pending. And yet they're prioritizing their few resources to use civil rights laws to go against trans kids.
SPEAKER_02:Do you have any sense of what's what that's looking like for trans young folks in college right now or in schools, period?
SPEAKER_00:I mean, it's it's a really hard time right now. You know, like what we do know from data and like research that reports that come out of organizations like Glisten or advocates for trans equality and other groups is that harassment and bullying is really high for trans students, you know, and then you pair that now with like powerful lawmakers who are bullying them, who are putting the resources into passing laws and now the Trump administration that target them. I mean, it's a scary time. And there's just a lot of concern, there's fear. This sort of ugly rhetoric that's coming out of this administration, I think, has become more acceptable when you hear the president say really offensive things, right? And the people who he surrounds himself with. And so the legal fights are still ongoing. I mean, they're they're doing a lot of disastrous things, and there this issue is still being played out in the courts when it comes to uh trans students' rights in Title IX.
SPEAKER_02:I think the moment we're in is such a clear indicator that federal policy, federal regulations, or even just how federal actors speak about any given issue, how it how it trickles down and has a significant impact on the culture. Yes, it has a significant impact on the everyday uh legal protections for folks. And beyond that, it it changes how our communities speak about any given group. We have programs across New Mexico that have been doing sexual violence prevention for many years that included overt uh mentions of trans people, and even more than that, saw that creating safer environments for trans and non-binary students created safer environments for everybody, right? That the presence of a genders and sexualities alliance in a school decreases the level of harassment that all students face. And so this is work that we do not just to be inclusive, but because it actually moves the needle for everybody. So that's work they've been doing for so long. And suddenly schools that they've been doing that work in for 10, 15 years, they won't allow them to talk about trans folks. Even schools that are not being pressured uh individually by any federal actor. It is, they they are hearing this and interpreting it as this is something you cannot do here, or students taking a picture of an evaluation that says uh that has the question, I have or would have an LGBTQ plus friend, uh, because we've we now know that students who say, Yes, I have or would have an LGBTQ plus friend are less likely to agree with statements like women should put up with violence in order to keep their families together. Or if someone is sexually assaulted and they are intoxicated, they're at least partially to blame. They're less likely to agree with those statements because we know that homophobia and transphobia are at the very roots of many rape myths, um, because gender norms are at the roots of rape myths. So students are seeing this question and taking a picture of it and sending it to their parents and saying, look at what they're teaching me when it's never been a problem before. And so the communities that we're working in and trying to do sexual violence prevention in the ways that we know it works best, which includes talking about trans and non-binary folks, talking about queer and trans folks, period. We're not allowed to do it. So what is that? What do we do then? How do we still make our programming inclusive and reflective of the young people that we're working with? Because it doesn't, it's not like it's changing the number of queer and trans young people in our classes or in our communities. It just shifts how open they can be around around it or how much they want to talk about it with in front of that group. So we're we're we're feeling stuck, and I know that's the case across the country. And here in New Mexico, we're really lucky that we we do have many protections for queer and trans folks of of all ages and for queer and trans students. And the fear doesn't go away just because we have a law in New Mexico that says, no, it'll be okay. Uh those young folks are still hearing every day from administration, you shouldn't exist. We don't want you to exist. We want you to be deeply ashamed of who you are. And that impact I think we're gonna feel for so long. And and that's the piece where I just keep getting really stuck is what is the antidote to that? I don't know what it is. It is, is it just continuing for me personally? Is it continuing to live my life as a really happy trans adult who is deeply fulfilled and uh is able to pursue my hopes and dreams because I've received the support that I needed to get through the world? Is it working locally on legislation? Is it working nationally? What does that look like? And I is it media representation or is it just a combination of everything? And I'll that's likely the answer. But our programs, they're feeling so stuck in wanting to show up for students in the ways that they need it and being told, no, you can't do this. We don't want you here anymore. And if that's happening in New Mexico, it's it's really scary for me to think about what that's looking like in other places in the country.
SPEAKER_00:Yeah, yeah. It just leaves students more isolated and without support. It's like, it's like you said, it's the opposite of creating an inclusive and affirming space. And that fundamentally harms equal opportunity education. It really just turns the purposes of these laws on their head. And the cultural piece is a huge part of it because trans and queer kids and people have always existed, but now they're making it seem like, oh, now it's this huge problem. And, you know, this is an issue that the far right manufactured, starting with sports, in 2020 to score political points, right? And and weaponizing the language of women's rights to justify attacking trans people and trans women and girls in particular. And it's just been really disgusting because these are the groups like Heritage Foundation or Alliance Defending Freedom that pushed proposed legislation on sports bans in 2020. Idaho was the first state to pass a span a sports ban law. Now more than half the states have one. And I mean, obviously, these aren't groups that care about women's rights. Like they're not even doing anything to address protections in sports. Like it's like so clear that they're just using this as a talking point to justify specifically targeting trans people and to deny. Protections under civil rights law for a vulnerable community. And it's so horrifying like how that has really taken off and extended into gender-affirming care and bathrooms and just like def redefining sex. And as you said, like these issues are all connected. They're about defining what it means to be, you know, we're talking about these laws that are framed as protecting women. What does it mean to be a protect to be a woman or a girl? You know, and underlying that is a lot of sex stereotyping. And that's where rape myths live. And that's where they're attempting to put us into these boxes. And that anyone who steps beyond it or outside of it is like a threat to their vision of whatever the world and how it should be. And so we should all be very concerned.
SPEAKER_02:Because it is not just trans people who are uh going to be impacted by these pieces. The the further we define sex and sex characteristics, we or redefine or go back to how it was defined, the more cisgender people are also harm harmed. When we do uh gender box activities in middle school classrooms, when they start to talk about what the air bunnies, quote unquote, perfect woman looks like, they not only say that she is tall but not too tall, skinny but not too skinny, wearing clothing that is skippy but not too skippy, she is curvy, but like not any kind of curvy, no the right kind of curving, that kind of like an hourglass, and not no makeup because it's like she's not even trying, but not too much makeup, because what are you trying to hide? So, like enough makeup to make it seem like she's not wearing any makeup, which is already exhausting. On top of that, we asked them what hair color should she have, and these students say blonde, what eye color should she have, and they say blue. And that is, and the bulk of these students do not look like this. And as folks in this work well know, is because the construction of gender roles is uh inextricably linked with dominant culture and race, class, religion, yeah, national origin, language, family structure, sexuality, you name it, it's there. And so at the end of the day, the list of folks who are gonna be impacted by this rhetoric and federal action, it's just gonna grow and grow and grow. It's so easy to, I think, leave trans people behind. We're an easy target, and I think we're easy to be left behind by many folks without realizing that when you leave us behind, you're you're harming yourself as well. And that's why we've focused in New Mexico so much on how do we integrate protecting trans folks into our larger sexual violence prevention strategy. Because one, we know trans folks are assaulted at disproportionately high rates. Two, we know that having a positive sense of identity and connection to community, those are two of the most uh impactful protective factors out there when it comes to being targeted for sexual violence. Three, that folks who believe in rigid gender norms and and deeply adhere to them are more likely to perpetrate acts of violence and are less likely to uh access help if they themselves experience sexual violence. They're all so linked and that so many of us are being forced to leave that behind or being urged to leave that behind is just so devastating to me.
SPEAKER_00:It's so devastating. I mean, it's like advocating for the rights of trans people is at the root of advocating for gender justice.
SPEAKER_02:Period.
SPEAKER_00:It's so frustrating, I think, of the other side framing everything as women's rights. And it's like, no, you are not the group, so speak, for the broader movement. But that has really taken such a strong hold. And it's just so awful. There was something else you said around like the race piece. Yes, like the around you know, these standards of femininity being rooted in whiteness. And we've seen it play out like in professional athletics, right? Like black and brown women who've had their gender questioned and then experienced harassment as a result, like Castor Semenya, Mani Khalib, Dati Chand, right? There are so many stories of women of color in the athletic space. And so it's there is a great harm when there are sports bands in place or bathroom bands, because how are we expected to verify someone's gender? And obviously, like who's going to be targeted? Those people who don't conform to someone else's idea of womanhood. They don't fit the stereotype. And so, again, like we should all be very concerned about this because I mean, this is just a broad threat to like protecting our individuality.
SPEAKER_02:Which is the point. The point is to so narrowly define what it means to be a worthy human that so many of us get left behind, that that there are fewer resources being taken. So things are hard, things are bad. So you you had started to mention, you'd started to talk about a little bit earlier where things are at right now and what protections are still there. Because it is things are bad, they are not entirely destroyed yet. I try not to go there. I really try to be a positive patty. You've caught me on a day when I'm not feeling that way. But what is the state of protections right now for survivors under Title IX? And how'd we how'd we get here?
SPEAKER_00:You know, there is still this ping-ponging, right, around Title IX protections, because the way that schools are interpreting what Title IX requires has come from these regulations that are now based on what the Trump administration put forward in 2020. And then cases like lawsuits that have been filed, which are similar now, the regulations. So, I mean, it's not that schools can't do anything. They are required to respond. They have to take steps, you know, they have to uh investigate complaints, provide supportive measures for survivors. These are the types of accommodations that someone might need to be able to access education. Maybe it's like a change in housing or a classroom reassignment or an extension on exam or an extension and completing an assignment or counseling, you know, whatever it is a school can do to accommodate a student in the aftermath of experiencing sexual assault so their education doesn't suffer. But, you know, it is true that with the Trump rule, they've kind of created a higher threshold so that certain complaints are not required to be investigated if it doesn't, if it's not severe or pervasive enough. That does not mean schools cannot have policies to address all sexual harassment and they should. And again, you know, we've created resources that identifies like despite the fact that we have this awful rule in place, like what are the ways that schools can support survivors? And they absolutely still should have these broad policies. Um, they should continue to do education and training around sexual assault. They should, I know you talked to Jacqueline, like have comprehensive sex education from a young age, because that is the best way of prevention in a way that's like inclusive of uh queer students that is uh, you know, a developmentally appropriate that talked about consent. That is the best way to teach students to respect each other and to identify harmful behavior and you know to help prevent this from continuing into continuing into adulthood. We also have a resource called 100 school districts that identifies a lot of different policies that school districts can have in place beyond, you know, the Title IX investigative procedures. You know, one of the policies we talked about is having transinclusive bathrooms, because that is a way to help ensure safe environments for students. And we know that trans kids are more likely to experience sexual harassment and violence if they're not allowed to use a right restroom, right? You know, so again, that highlights like the intersection between supporting survivors and having transinclusive policies like that support trans students. I mean, students still have rights. And then this isn't even me talking about what states offer, and it really varies by states when they elaborate on like having affirmative consent, like you said for New Mexico, or you know, having explicit confidential reporting mechanisms for student survivors, or requiring that campuses have like an advocate just for survivors on campus. So there's some states that have those additional protections beyond what Title IX addresses.
SPEAKER_02:I like that you all are so focused on, okay, this is the landscape right now, and there's still so much we can do. And that's where I end up feeling really energized when I'm I'm feeling starting to drift towards hopelessness, is especially at the local level, there's so much we can do to help increase protections. I'm especially interested in in what that looks like on the K through 12 level here in New Mexico. We are going back to try to pass um a comprehensive sexual health education law because we ended up taking affirmative consent education out of our previous legislation that then ended up just covering higher education. And we did that because we we knew that actually we needed a broader approach that that required affirmative consent be taught across across every district in New Mexico within the structure of comprehensive sex ad. The local level is what quite energizes me. And at the same time, I end up feeling so sad and uh uh frustrated around once again access to information that is life-saving, access to investigative uh procedures within an organization that are going to be affirming and trauma-informed and and based in in reality, and that uh access to sports and bathrooms and just the ability to exist ends up being so dependent on where you live. And and I I don't know what to do with that frustration. What do I do with that frustration? Do you have any thoughts? This is my shiwali. Can you fix it?
SPEAKER_00:I wish, I wish, I wish. Like it shouldn't have to be that way. And I mean, it shouldn't have to be that way.
SPEAKER_01:Yeah.
SPEAKER_00:And the thing we can do at this moment is like focus on the states where we have protections. Our office worked with state, a few state attorney general offices for them to reiterate their support to trans students. And the there are a few state attorney generals who were part of this video that we put available on our website that says, like, basically, we got your back. We don't care what Trump In Station's doing, we're gonna protect you. And just felt like that needed to be strongly said. And it's great, like, that's what kids need to hear. Because as you were saying, like, imagine being on the other end, you're feeling all of this like attack and backlash and being targeted that like we need to have strong messengers coming out in support, but then those are only for the states for like a select piece states, and so that's why we need a strong federal response. It's not gonna happen now because it's our federal government that is doing that's like behind these attacks in many ways. Yeah, I don't have a solution right now. I think the things people are doing locally are great, you know. I know, you know, I was just having a conversation with my friend who's an immigration attorney. We were just talking about this yesterday, and she was talking about like, you know, I live in Maryland, she's in Virginia, the differences between the states and how she even counsels her clients on like where to move, you know, and that's not where we should be. And we've heard that with like families with trans kids who've moved out of Texas when they have that whole like CPS thing. Yeah. Um, and it's just so heartbreaking that like there are just the truth is states that are it's just not safe. It's really gutting.
SPEAKER_02:That's the reminder also that when our systems fail us, we have to turn back towards community. And and yes, it's this the small is all piece um from Adrian, Adrian Marie Brown is turning back towards a hyperlocal community. What does that look like? Hey, maybe we can't shift things federally right now, but you can get really involved at your local level and get involved in your local school district and show up to school board meetings and be interested in what those those members are are promoting and standing up for or not standing up for, and then demand a shift. That means we can uh work within our programs to help them find ways to continue to do their really important sexual violence prevention work in schools without being kicked out for using certain words. What does that look like? I wish we didn't have to do that, but we do. How do you shift your language so that folks can hear the message? The message is the same, but we changed the language. Okay, it's fine now. Okay, then we'll say it that way, which on on one hand is deeply frustrating and uh demoralizing. And on the other hand, is like, okay, but we we gotta be in here to fight another day, and maybe that's just one more person in a school that can be there if a young person discloses, or yes, be the person to say, Hey, I our our agency is here for everybody, period. The local piece is where I get really energized and just will over and over and over. I wish we could shift things on a broader level right now, and putting energy where we can make an impact is so important to stave off the scaries. Yeah.
SPEAKER_00:I mean, especially those of us who are like doing the work, you know, like we it's it's easy to, it's hard. It's hard. Like, I still have my moments where I'm like, what am I doing? I still grapple with that, especially in the train. I'm like, what am I doing with the law? What is the law these days? Like we're violating it left and right. Like, how can I be affected? Right. Um, and I still sit with that. Like, what do I need to be doing? But I also remember that part of their goal here in like throwing and doing so much at once, flooding the zone and creating chaos is to hope that we do give up, right? That we just become so exhausted by all this, we feel so disempowered. And then that does make it easier for them to continue on this, like, you know, they're all the terrible things that they're doing, and that there is some value. And again, I'm thinking federally, this the community work needs to happen. But thinking that the federal fights where it just feels like a losing fight constantly, it's like even just throwing sand in the gears is something, it's not for nothing, you know, and even like trying to make things difficult or less easy to do or raising a stink and like giving other people hope that there's still ways to fight back or that people are still doing it and we're not giving up. I'm like, okay, I see that is important because I think we kind of all feed off of each other in the different ways that we're fighting. And so when we do it, I think it helps us to continue doing it on our own when we see other people doing it in whatever way they are.
SPEAKER_02:I love that. That's really great. That was helpful for me. Save, you did fix it. Wonderful. Yes, continuing to do the work shows people that we're not giving up, which is huge. That we need that very much so. I always uh I have uh three littles in my world um that I parent regularly, and uh it's fascinating to see anytime they're having a hard day. I so often turn to myself. I'm like, what kind of day am I having? And how are they feeding off of that? And and I'm allowed to be a human and having have a hard day, and and that is that is allowed and important as well. Um, and when I can shift my attitude, it's amazing to see what it what it shifts for them. And I always parenting becomes my ultimate metaphor for everything because it is so much of my world. And thinking about how we hold ourselves in this work while being very truthful about what the reality is and believing that it can and will be different, I think is to your point, what will carry us through right now. We need to be honest about where we're at and ambitious about where we can go so that we can keep people motivated.
unknown:Yeah.
SPEAKER_00:Yeah. I we are gonna be creating something different and I think better for us. Like we'll get there.
SPEAKER_02:So looking back toward Title IX and its original very broad goals, we're clearly not there. We haven't achieved those broad goals. Thinking forward to a future to some years from now in a in a future administration, let's say it's an administration where we can really move things, what would you do? What would you what would you shift if you could shift one thing immediately? Or what would you shift over along a long administration where you can actually make change?
SPEAKER_00:Like assuming we're not in this administration?
SPEAKER_02:Assuming we're not, yeah, some years from now, assuming we're not in this administration, if we're in an administration where you could actually get something done and shift things very positively for the long term, what would that look like for you?
SPEAKER_00:Yeah, I mean, I think like I want us to have more clear legislative protections. I mean, things might go to the Supreme Court if there's like constitutional issues, if they people claim there are. I think our courts also is a huge issue here, especially the Supreme Court, because they've greenlit a lot of unlawful actions, which is quite terrifying. But there have been wins of litigation. But I would see like explicit legislative protections around being very clear, like what the Equality Act does, what we're trying to do for Safer Act on how Title IX is broad and who it protects, including, you know, based on discrimination, based on sexual orientation, gender identity, sex characteristics, and that like there is clear requirements on schools that ensures that they are responding to more incidents, that they're treating sexual harassment, assault, the seriousness that it requires, that there's a flexibility to take into account, you know, what the students want, where the students are at, like what would actually help create a better situation. Because not every student wants an investigation, right? Especially like how do you protect autonomy too, especially with older students. Um, and so how it takes that right balance, which is hard to do in legislation, but I think we do need to have that clarity because there's gonna continue to be these fights around the regulations and policy. I mean, we're having an administration who's not even like cared about, doesn't even care that there aren't regulations supporting their interpretation of Title IX. They're just like treating it like law. What does process mean these days, you know? But that being said, you know, there's like clear express language in the
SPEAKER_02:statute so it can't be interpreted based on TikTok talking points. Yes.
SPEAKER_00:I mean the courts have interpreted right. Like we would say that is the interpretation, but still yeah we're not the reality is a lot now courts aren't always with us artists. It's not great. But things are still helpful Jess.
SPEAKER_02:How about the hope? Because the the hope is that we're still here.
SPEAKER_00:We're still here. We're still doing it and people are still fighting and they're already envisioning for what's to come next while still fighting the fight right now. All will not be completely lost. Yes, a lot of things are destroyed. But I I think in this moment it's so important to hold the line and do what we can to make sure like schools and institute law firms and others do because one of the first rules with dealing with fascist and authoritarianism is you do not capitulate do not negotiate with fascists. Right? Yeah the other piece is recognizing that who they're scapegoating here they're scapegoating immigrants or scapegoating trans people right this is like part of a playbook and I just think we need to be aware of that too. But there is more awareness of it and more recognition.
SPEAKER_02:Yeah we don't leave communities behind for short term term wins. I feel like that's a good hopeful place for me. I always have to end on a hopeful place because otherwise I can't get by. So thank you.
SPEAKER_00:Oh I don't know if I really am hopeful enough but yeah I appreciate you like saying that it's helpful.
SPEAKER_02:And just that reminder that we have to keep doing it so that other people can see that we're still doing it. It's the is it cold in this room is anybody else cold phenomenon is we're we're taking the temperatures is anybody else concerned about this is anybody else fighting this oh you were fighting maybe I also need to fight this I think that that is not to be understated very much so.
SPEAKER_00:Yes.
SPEAKER_02:Thank you so much for being here I continue to learn so much from you and thinking about seeing people in the fight and continuing to show up even when it's hard I am very glad to be able to think about you and the work that you're doing and have done for many years as those headlines drift past my doom scroll and I start to feel hopeless I can think you know what Shwali's there doing the work and is very skilled in it. So thank you for being out there. Thanks for having me. Thank you for listening to Both and Both and is a project of the New Mexico Coalition of Sexual Assault Programs and this episode was made possible by the New Mexico Department of Health. Both End is produced by me, Jess Clark and edited by the fabulous Daisha Clay at PillowFord Studios. Intro music was written by Michelle Shamuel and the logo design by Alex Ross Reed. You can find links to the articles and papers we mentioned in the show notes and as always you can reach me with questions, comments, and even disagreements at Jessc at nmcsap.org. Thank you and I'm so looking forward to next time
