Department of Education Releases Proposed Title IX Revisions

Nilan Johnson Lewis PA
The U.S. Department of Education (DOE) released its long-awaited proposed regulatory changes to Title IX of the Education Amendments of 1972 (Title IX). Title IX protects students, faculty, and staff from sex-based discrimination in education programs and activities by institutions that receive federal financial assistance (recipients). The Title IX regulations were last amended in May 2020 by the Trump administration and faced an immediate—and largely unsuccessful—legal challenge. The Biden administration’s proposed regulations are a major departure from the current regulations. Among the changes, they expand the scope of covered conduct, eliminate many of the detailed Trump-era requirements for grievance procedures (including the controversial hearing and cross-examination requirements), make explicit protections for LGBTQI+ students, and add protections for pregnant students and employees.
In the short-term, educational institutions are not required to change their current Title IX policies or processes. The proposed guidelines must first undergo a 60-day period of public comment before final regulations are issued. Additional changes to the proposed regulations may occur as a result of the public comments.

The DOE also announced it would engage in separate rulemaking to address Title IX’s application to athletics. This rulemaking would address whether and how the DOE should amend the Title IX regulations to address transgender students’ eligibility to participate on a particular male or female athletics team.

Highlights of the proposed regulations and a comparison to the current regulations are summarized below:

Proposed Amendments to Title IX Regulations Comparison to Current Regulations
Expands definition of discrimination on the basis of sex to include sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Not addressed.
In certain circumstances, requires recipients to address sex-based harassment that occurred outside a recipient’s education program or outside the United States. Requires recipients to only respond to reports of sexual harassment that took place in its education programs within the United States.
Restricts recipients from preventing a person from participating in an education program consistent with the person’s gender identity. Not addressed.
Expands protections for pregnant students and employees, including:
  • Prohibiting recipients from discriminating against any student, employee, or applicant on the basis of pregnancy or related conditions;
  • Requiring any employee informed of a student’s pregnancy to inform the student of how to contact the Title IX coordinator and provide contact information;
  • Requiring recipients to allow a pregnant student a voluntary leave of absence;
  • Requiring recipients to allow pregnant employees an unpaid leave of absence with job protection;
  • Requiring recipients to ensure the availability of a lactation space and allow employees reasonable break time to breastfeed or express breast milk;
  • Requiring recipients to provide reasonable modifications to a recipient’s policies, practices, or procedures.
Prohibits discrimination against students, employees, and applicants based on pregnancy and requires recipients to provide students and employees an unpaid leave of absence.
Prohibits pre-employment inquiries into the marital status of an applicant for employment. Allows recipients to ask applicants to self-identify their sex, but only if asked of all applicants. Not addressed.
Institutes and expands mandatory reporting requirements to all employees (who are not confidential employees) who have information about conduct that may constitute sex discrimination. No mandatory reporting requirements for higher education institutions; however, institutions are only required to respond to notice of sex discrimination when the notice iss received by the Title IX coordinator or an official who has authority to institute corrective measures on the institution’s behalf.
Requires a Title IX coordinator, when notified of conduct that may constitute sex discrimination, to offer supportive measures to the complainant or respondent. Requires supportive measures only in instances of sexual harassment.
Requires recipients to provide a complainant or respondent the opportunity to seek modification or reversal of supportive measures. Not addressed.
Requires specific grievance procedures (including investigation) to address all complaints of sex discrimination, including retaliation, and creates additional requirements for grievance procedures to address complaints of sex-based harassment. Requires recipients to institute a grievance process (including investigation) in response to formal complaints of sexual harassment only.
Eliminates the distinction between formal and informal complaints. Requires recipients to follow its grievance process only in response to a formal complaint.
Requires recipients to provide a process that enables decision-makers to assess the credibility of the parties and witnesses. Eliminates the requirement that this be done through a live hearing and cross-examination. Allows individual meetings between the decision-maker and parties to satisfy this requirement. Allows recipients to utilize a single-investigator model. Requires recipients to conduct a live hearing with cross-examination by party advisors. Prohibits the single-investigator model.
Requires use of the preponderance of evidence standard, unless the recipient uses the clear and convincing standard in all other comparable proceedings. Allows recipients to choose either preponderance of evidence or the clear and convincing standard.
Clarifies prohibited retaliation to include peer retaliation. Not addressed.

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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