Update on Biden Administration’s Title IX Proposed Rule

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[co-author: Jenny Lee]*

As we’re nearing the end of the calendar year, many of you may be wondering where things stand with the Biden Administration’s proposed Title IX regulations. As we previously reported on this blog, the proposed Title IX rule would significantly revise the Trump administration’s 2020 rule, including by clarifying that Title IX protects individuals on the basis of sexual orientation, gender identity, and sex characteristics; broadening the definition of sex-based harassment; broadening the jurisdiction of institutions to address off-campus harassment; expanding the rights of pregnant and parenting students and employees; and making the live hearing and cross-examination requirement optional.

After the proposed rule was released in June, members of the public had 60 days to submit comments to the Federal eRulemaking Portal, which you can browse on their website here. Nearly 240,000 comments were submitted by the September 12 deadline, surpassing the previous record held by the number of comments submitted in response to the Trump administration’s proposed Title IX rule (over 120,000). While the comments cover a broad range of issues, numerous commenters focused on the proposed rule’s inclusion of sexual orientation and gender identity under the definition of sex and its increased protections for LGBTQ+ students and employees.

After the Department of Education Office for Civil Rights (OCR) reviews public comments, OCR will draft the final rule and publish the final rule and preamble in the Federal Register. While there is no word yet from the administration about the date for the final rule’s publication, note that the Trump administration’s final Title IX rule was published 18 months after the release of the draft rule. Thus, while the exact timeline may vary, the current 2020 Title IX regulations will continue to be in place for some time.

While we await the publication of the final rule, we encourage Title IX teams to continue to review your sexual misconduct policies and procedures and the requirements under the current 2020 regulations and ensure all current members of your Title IX team are identified, trained and prepared to respond to reports and complaints of sexual harassment. As always, our attorneys at Franczek are here to help support you and your Title IX team. We are providing a range of training options for the new year and continued support through our Title IX Toolkit, counseling and other Title IX services. Feel free to reach out to us anytime with your Title IX questions and training and support inquiries.

*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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