Sen. Bob Casey of Pennsylvania recently introduced the Students’ Access to Freedom and Educational Rights (SAFER) Act in the Senate, with a corresponding bill also offered in the House of Representatives. In his zealous advocacy for the law, Casey has fundamentally misrepresented the measure to fellow lawmakers and to the public.
What would the SAFER Act do? The bill proposes to make two definitional changes to the law that governs campus sexual conduct.
First, the existing Title IX law, enacted in 1972, was designed to eliminate discrimination based on a student’s “sex.” Casey’s SAFER bill seeks to expand this fundamental term to include sex stereotypes, pregnancy or related conditions, sexual orientation, or gender identity. Gender identity is defined as “a person’s internal sense of gender, which could be female, male, or another gender.”
What could possibly go wrong with that? “Sex” is a bedrock concept, both in society and in the law. When you play with that definition, profound changes are likely to ensue:
- Any person whose “internal sense of gender” happens to be female would be able to participate in women’s sports. Changing one’s “internal sense of gender” does not curtail a person’s physical attributes that are determinants of athletic success.
- In schools across the nation, government-endorsed “Gay-Straight Alliances” encourage students to experiment with their sexual identification. The three-step gender transitioning process includes a social transition, hormone treatments, and surgical alteration of the breasts and genitalia. These changes are made on under-age children who have no comprehension of the life-altering changes they are about to undergo.
- Parental rights become compromised. In April, President Joe Biden breezily informed a group of teachers, “They’re all our children…They’re not somebody else’s children; they’re like yours when they’re in the classroom.” Accordingly, parents often are not informed of the impending gender transition.
Second, Sen. Casey wants to redefine “sexual harassment.” Why is that a big deal?
In its milestone Davis v. Monroe decision, the Supreme Court defined sexual harassment as harassment that is ‘‘so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.’’
But the SAFER bill proposes a far broader definition that would encompass virtually all sex-related conduct that is perceived to be “unwelcome:”
“any unwelcome conduct of a sexual nature, regardless of whether it is direct or indirect, or verbal or nonverbal…including by creating an intimidating, hostile, or offensive environment.”
In practice, such a move would open the door to an avalanche of false allegations of “sexual harassment” against men. And for good measure, its sweeping scope would bring an end free speech on campus.
As lead sponsor, Senator Bob Casey released a one-page summary of the SAFER bill. His rose-colored description makes this claim:
The Students’ Access to Freedom and Educational Rights Act would ensure “all students” are “truly protected from discrimination and afforded the equal educational opportunities to which they are entitled.”
The operative phrase is “all students.” Is it really true?
1. Earlier this year, Lia Thomas of the University of Pennsylvania became the first openly transgender athlete to win a NCAA Division I national championship in any sport. When Will transitioned to Lia, he didn’t lose his 6-foot, one-inch stature, greater lung capacity, or overall musculature. You can see for yourself in this photograph of Lia triumphantly holding the trophy.
So as it turns out, “all students” excludes female college athletes who are seeking a level playing field.
2. Penn State University has been given the dubious sobriquet as the “Worst Offender Among Pennsylvania Kangaroo Courts.” The due process violations were not mere procedural technicalities. In Doe v. Pennsylvania State University, for example, Judge Matthew Brann highlighted the school’s failure to adhere to basic cross-examination procedures.
So Casey’s promise of “all students” conveniently excludes male students who are at risk of a false accusation by a vindictive former girlfriend.
3. Third, Senator Casey seems to be oblivious to the widespread use of speech codes and other restrictions on free speech on campus that result in viewpoint discrimination. Apparently Casey was never told that out of 203 colleges nationwide, the University of Pennsylvania was recently ranked as 202. In other words, UPenn was a mere whisker away from being dead last.
So “all students” also excludes the students who self-censor their statements for fear of being ostracized or hit with a sexual harassment complaint. According to a FIRE survey, 83% of college students find it necessary to self-censor, at least occasionally, both within and outside the classroom.
So under examination, Casey’s “all students” claim only applies to the seven percent of persons who self-identify as LGBT, according to a recent Gallup poll. And it would dramatically worsen discrimination against the remaining 93 percent of students.
Senator Casey, it’s time to tell the truth about the Students’ Access to Freedom and Educational Rights Act.
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