Programs covered by Title IX should review their existing policies to determine what changes will need to be made when final regulations take effect.
Attorneys in Ballard Spahr’s Education Industry Group advise schools and universities on a wide range of education law issues, including Title IX compliance.
On June 23, 2022, the 50th anniversary of the passage of Title IX, the U.S. Department of Education released its proposed changes to Title IX regulations, which codify protections for LGBTQ+ students from discrimination based on sexual orientation, gender identity and sex characteristics. The regulations aim to restore protections for students against all forms of sex-based harassment, ensure prompt and effective action, and eliminate the requirements of a live hearing and cross-examination. Notably, the Department’s proposed rule does not address Title IX’s application to school sports. The Department’s press release indicates it will address school athletics in a separate rulemaking process.
The Department’s long-awaited, proposed amendments come more than a year after the Biden Administration issued Executive Order 14021, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” EO 14021 directed the Department to review existing regulations to ensure consistency with the policy that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.” The EO instructed the Department to suspend, revise, rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding agency actions that are inconsistent with the EO’s purpose. The EO aimed to rescind a Trump-era rule that protected those accused of sexual misconduct. Originally promulgated by former Secretary DeVos, the rule narrowed the behavior that constitutes harassment under Title IX, increased the due process afforded to those accused of harassment, and decreased the circumstances in which a school is required to respond to alleged harassment.
Between January and March 2021, the Biden administration issued a flurry of EOs and additional guidance confirming that Title IX prohibits discrimination on the basis of sexual orientation and gender identity in educational settings, and adopting the Supreme Court’s reasoning from the landmark Title VII case, Bostock v. Clayton County. To effectuate EO 14021, the Department sought comment from a wide variety of stakeholders over the past year, holding five days of public hearings in June of 2021 (which we covered here and here). The public comments, which centered on protections for LGBTQ+ students and the Trump-era rule, informed the recently-issued proposed Title IX amendments.
Specifically, the proposed regulations clarify that Title IX’s prohibition of discrimination based on sex applies to sexual orientation and gender identity, and also includes discrimination based on sex stereotypes and pregnancy. It will restore protections for students against all forms of sex-based harassment, require schools to act promptly in response to complaints about sex discrimination, and strengthen protection for parents, guardians and representatives to act on behalf of a student.
The proposed regulations would establish clear requirements for schools to conduct investigations for all sex discrimination complaints, as opposed to the current requirements, which cover only formal complaints. Significantly, the proposed regulations would eliminate the Trump-era rule requirements of a live hearing and cross-examination. However, they would permit a postsecondary institution to use cross-examination if it chooses to do so or is otherwise required by law.
The proposed regulations will be open for public comment for a period of 60 days. Final regulations likely will not be issued until the end of the year.
Once final regulations are issued, institutions should plan to evaluate their current policies, procedures, and training curricula. Attorneys in Ballard Spahr’s Education Industry Group will be tracking and reporting on changes as they occur. Our attorneys advise schools and universities on a wide range of education law issues, including Title IX compliance, and can help draft internal policies to comply with any promulgated changes.