Biden Administration Releases New Proposed Title IX Regulations

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Franczek P.C.

[co-author: Jenny Lee]*

Yesterday, the Biden administration released its highly anticipated proposed Title IX regulations on the 50th anniversary of the passage of Title IX. The unofficial draft of the proposed rule can be found here. The Department also released a fact sheet on the draft rule as well as the Department’s summary of the draft rule’s major provisions.

As expected, the proposed Title IX rule marks a significant departure from the Trump administration’s Title IX regulations regarding sex discrimination and how institutions should respond to complaints of sex-based harassment. Some of the major changes in the new proposed regulations include:

  • Clarifying that Title IX’s protections against discrimination based on sex apply to sexual orientation, gender identity, and sex characteristics.
  • Replacing the 2020 standard of sex-based harassment (“severe, pervasive, and objectively offensive”) with the broader Title VII standard (“severe or pervasive”).
  • Requiring institutions to address conduct that occurs off-campus when the respondent is a representative of the institution or otherwise engaged in conduct under the institution’s control.
  • Making the live hearing and cross-examination requirement optional.
  • Requiring institutions to provide supportive measures to students and employees affected by any type of sex discrimination, including but not limited to sexual harassment.
  • Expanding the rights of parents and guardians to act on behalf of a student, including seeking assistance under Title IX and participating in a grievance procedure.
  • Expanding the rights of students and employees who are pregnant or have pregnancy-related conditions.

In its press release, the Department also stated that it plans to engage in a separate rulemaking process to address Title IX’s application to athletics.

As this is just a proposed rule, educational institutions will not need to start updating policies and procedures just yet. Once the Biden administration’s proposed rule is officially published in the Federal Register, a 60-day public comment period will follow. OCR will respond to all public comments, finalize the rule, and publish the final rule and preamble in the Federal Register. As many of you may recall, the Trump/DeVos draft rule was released in November 2018, and the final rule was published in May 2020 with an implementation deadline of August 2020. Thus, while the exact timeline may vary, given the multiple steps required by the rulemaking process, we anticipate that the current 2020 regulations will continue to be in effect for the time being.

*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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