On June 23, 2022, in celebration of the 50th anniversary of Title IX – the landmark civil rights law that has opened doors for generations of women and girls – the U.S. Department of Education (USDE) released for public comment proposed changes to the regulations that help elementary and secondary schools and colleges and universities implement this vital legislation. The proposed amendments will restore crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination – a critical safety net for survivors that was weakened under previous regulations. The proposed regulations will advance educational equity and opportunity for women and girls across the country to ensure that every student in America, from kindergarten through a doctorate degree, can achieve her dreams. In addition, LGBTQ and pregnant students, as well as pregnant employees, would for the first time be protected under Title IX regulations, the USDE announced in releasing its much-awaited Title IX proposed rules.
“Over the last 50 years, Title IX has paved the way for millions of girls and women to access equal opportunity in our nation’s schools and has been instrumental in combating sexual assault and sexual violence in educational settings,” said U.S. Secretary of Education Miguel Cardona. “As we celebrate the 50th Anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all our nation’s students – no matter where they live, who they are, or whom they love – can learn, grow, and thrive in school. We welcome public comment on these critical regulations so we can further the Biden-Harris Administration’s mission of creating educational environments free from sex discrimination and sexual violence.”
According to the USDE’s press release, the proposed regulations will advance Title IX’s goal of ensuring that no person experiences sex discrimination, sex-based harassment, or sexual violence in education. As the Supreme Court wrote in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), it is “impossible to discriminate against a person” on the basis of sexual orientation or gender identity without “discriminating against that individual based on sex.” The regulations will require that all students receive appropriate supports in accessing all aspects of education. They will strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity. And they will require that school procedures for complaints of sex discrimination, including sexual violence and other sex-based harassment, are fair to all involved. The proposed regulations also reaffirm the Department’s core commitment to fundamental fairness for all parties, respect for freedom of speech and academic freedom, respect for complainants’ autonomy, and clear legal obligations that enable robust enforcement of Title IX.
The proposed regulations would:
-Clearly protect students and employees from all forms of sex discrimination.
-Provide full protection from sex-based harassment.
-Protect the right of parents and guardians to support their elementary and secondary school children.
-Require schools to take prompt and effective action to end any sex discrimination in their education programs or activities – and to prevent its recurrence and remedy its effects.
-Protect students and employees who are pregnant or have pregnancy-related conditions.
-Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decisionmakers to evaluate the evidence.
-Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.
-Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics.
-Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights.
-Improve the adaptability of the regulations’ grievance procedure requirements so that all recipients can implement Title IX’s promise of nondiscrimination fully and fairly in their educational environments.
-Ensure that schools share their nondiscrimination policies with all students, employees, and other participants in their education programs or activities.
The USDE will engage in a separate rulemaking to address Title IX’s application to athletics.
The USDE’s comprehensive review of its Title IX regulations began in March 2021, as directed by Executive Order 14021 – Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. The USDE has sought public input throughout that process. Over the last year, the USDE has heard from a wide variety of stakeholders, including students, parents, and educators in elementary, secondary, and postsecondary schools, state government representatives, advocates, lawyers, researchers, and other stakeholders through the Title IX nationwide virtual public hearing in June 2021 convened by the Office for Civil Rights (OCR) and in numerous listening sessions and meetings. This input, together with careful review of federal case law and OCR’s enforcement work under Title IX, highlighted the need to revise the current regulations to protect more fully against sex discrimination in all education programs and activities receiving federal financial assistance.
“The proposed regulations reflect the USDE’s commitment to give full effect to Title IX, ensuring that no person experiences sex discrimination in education, and that school procedures for addressing complaints of sex discrimination, including sexual violence and other forms of sex-based harassment, are clear, effective, and fair to all involved,” said Catherine E. Lhamon, Assistant Secretary for Civil Rights.
The USDE’s proposed Title IX regulations will be open for public comment for 60 days from the date of publication in the Federal Register.
Additional information on the proposed rule, including a summary with background information and a fact sheet, is available here.
The unofficial version of the proposed rule is available here.