Takeaway: The latest proposed amendments to the Title IX regulations would expand the scope of Title IX (by geography, time, and type of sex discrimination), create new obligations for higher education institutions, and provide further guidance, including some flexibility, on the Title IX grievance process.

On June 23, 2022, the United States Department of Education released its proposed changes to Title IX regulations. The proposed amendments, released on the 50^th anniversary of Title IX, followed a comprehensive review by the Department, including public input from stakeholders such as students, parents, educators, advocates, and researchers. The Department has published a Fact Sheet and a Summary of Major Provisions in the proposed regulations, along with an unofficial version of the proposed rule.

The proposed amendments, if they become final, would once again modify the obligations of higher education institutions and expand the conduct Title IX would address as set forth below:

• Proposed changes to the definition of “program or activity” would broaden the geographic reach of Title IX, and a higher education institution would have an obligation to address:
  • Conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution for conduct that is “under the school’s disciplinary authority”
  • Sex based harassment contributing to a hostile environment that occurred outside the recipient’s education program or activity or outside the United States
• Expands the definition of “sex-based harassment” to include sexual harassment and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity
  • Sex-based harassment includes other sex-based conduct such as quid pro quo harassment (currently included) and harassment that creates a hostile environment
• Requirements to provide clear information and training about when employees must notify the Title IX Coordinator about possible sex discrimination and how students can report sex discrimination for the purpose of seeking confidential assistance only
• Requires monitoring by the Title IX Coordinator of barriers to reporting information about conduct

Title IX Coordinators, Investigators, Decisionmakers, and others directly involved in the Title IX grievance process should be aware of the following proposals that impact that process:

• The adoption of grievance procedures for all complaints of sex discrimination, rather than just for sexual harassment complaints
• The Decisionmaker may be the same person as the Title IX Coordinator or Investigator – a “single investigator model”
• Elimination of the requirement for a live hearing and for required cross-examination – instead, the regulations set forth two optional processes to assess credibility of parties and witnesses, when necessary, during a meeting or live hearing
• Changes to the definition of “complainant,” that would allow a complainant to file a complaint retroactively, to a time that they were participating in a program, even though at the time of complaint the complainant is not a participant
• Defining relevant evidence as “when it may aid in showing whether the alleged sex discrimination occurred,” eliminating the distinction between “evidence that is directly related” and “relevant evidence” in the current regulations
• Identifying three categories of evidence, and questions seeking that evidence, as impermissible regardless of relevance (privileged records, treatment records, and evidence related to the complainant’s sexual interests)
• Requiring a preponderance of the evidence standard unless clear and convincing evidence is used for all other comparable procedures – in other words, recipients would be barred from imposing a higher standard of evidence just for Title IX complaints as compared to other complaints of discrimination

Title IX Recipients (schools, state and local educational agencies, and other institutions that receive federal financial assistance from the Department of Education) must implement the following to protect students and employees from discrimination based on pregnancy or related conditions (childbirth, termination of pregnancy, or lactation):

• Provide reasonable modifications for students, such as allowing breaks during class to attend medical appointments, breastfeed, access to online courses, and extensions to complete coursework
• Provide reasonable break time for employees for lactation
• Provide a clean and private lactation space for both students and employees
• Provide students with information on how to contact the Title IX Coordinator for assistance
  • Once the Title IX Coordinator is notified, they must:
    • Provide the student with the option of individualized, reasonable modifications and ensure equal access to the recipient’s education program or activity
    • Allow the student a voluntary leave of absence for medical reasons and reinstatement upon return
    • Provide the student a clean, private space for lactation

Title IX Recipients (schools, state and local educational agencies, and other institutions that receive federal financial assistance from the Department of Education) should acknowledge that Title IX’s prohibition on discrimination “on the basis of sex” now applies to (1) sexual orientation, (2) gender identity, and (3) sex characteristics (physiological sex characteristics and other inherently sex-based traits). The proposed regulations address discrimination by:

• Prohibiting higher education institutions from separating or treating any persons differently based on sex in a manner that subjects that person to more than minimal harm (unless otherwise permitted by Title IX, i.e., limited circumstances include toilets, locker rooms, and shower facilities)
• Prohibiting policies and practices that prevent a student from participating in a recipient’s education program or activity consistent with their gender identity
  • Notably, this does not include the context of athletics, the Department will engage in a separate rulemaking process to address Title IX’s application of athletics