New Title IX Regulations Coming Soon . . . Again!

For more than 50 years, Title IX of the Education Amendments of 1972 has paved the way for tremendous strides to access education, scholarships, athletics and more for millions of students across the country. Despite the progress that has been made, there continues to be many women and girls who still face fundamental barriers to equal education opportunities. Rates of sexual harassment and assault in K-12 schools, colleges and universities remain unacceptably high. The mission of Title IX, an education free from sex discrimination, remains as vital now as it was more than 50 years ago when it was first signed into law.

It was not that long ago that K-12 schools, colleges and universities were notified that new Title IX regulations were going to be issued. In May 2020, the Trump administration announced its release of new Title IX regulations giving K-12 schools, colleges and universities an August 14, 2020, date to implement the changes. Those changes had a profound impact, especially at the K-12 level, on the procedure and process by which schools would be required to handle sexual harassment complaints.

Fast forward to June 23, 2022, in celebration of the 50th anniversary of Title IX, the U.S. Department of Education and the Biden administration released for public comment proposed changes to the regulations for the second time in less than four years. This is a significant historical event considering the regulations went virtually untouched since they were promulgated in 1975.

The forthcoming regulations are expected to be released in May 2023 and will mark a significant departure from the Trump administration’s Title IX regulations regarding sex discrimination and how educational institutions should respond to complaints of sex-based harassment. Some of the anticipated changes outlined in the new rules regarding sex-based harassment, pregnant and parenting students, and LGBTQ+ students include the following.

Sexual Harassment

• The proposed rule would require schools to respond to all forms of sex-based harassment. In addition to sexual harassment, this includes harassment on the basis of sex, sex stereotypes, sex characteristics, sexual orientation, gender identity, as well as pregnancy or parenting status, and any related conditions whether or not the harassment is sexual in nature.

• Schools’ obligations to respond to “quid pro quo” harassment and sexual assault, dating violence, domestic violence, or stalking remain the same.

• The proposed rules broaden the definition of what is often referred to as “hostile environment” harassment, so that it is consistent with the standard that existed prior to the 2020 rules.

• To show that sex-based harassment created a hostile environment, the proposed rules would require only that individuals show the harassment is “sufficiently severe or pervasive” both “objectively and subjectively” such that it denies or limits a person’s ability to participate in or benefit from...the education program or activity.”

• In assessing whether conduct is severe or pervasive under this standard, the proposed rules identify several factors for schools to consider, such as the frequency of the conduct and the extent to which it impacts a person’s ability to learn. This change means that schools will be required to respond to a wider range of sex-based harassment so that more harassed students will be able to receive the help from their schools.

Other areas of sexual harassment relative to the requirements that schools will be responsible for are defined in the new rules including off-campus harassment, when a complainant or respondent is not enrolled or employed by the school and notice of harassment. Changes will also occur in procedures schools must implement in responding to sex-based harassment, including the standard of care, supportive measures, informal resolutions and retaliation.

Additionally, the new rules set forth a change in the way schools must investigate sex-based harassment relative to timeframe and delays, presumption of non-responsibility, questioning parties and witnesses, evidence of past sexual behaviors, standard of proof and the appeals process.

Schools will also be required to continue to train all employees on the school’s duties under Title IX to address sex discrimination, what conduct constitutes sex discrimination and their duty to report possible sex discrimination to the Title IX coordinator. Currently, the 2020 Title IX rules do not discuss prevention and monitoring of sexual harassment.

Under the proposed rules, schools would be required to prevent sex discrimination from re-occurring. This includes requiring the Title IX coordinator to look for and address the barriers to reporting sex discrimination, including by conducting campus climate surveys to assess how frequently students are experiencing sex discrimination without reporting it or seeking feedback from students and employees about their experiences reporting sex discrimination.

Pregnant and Parenting Students

• The new regulations would reinforce that schools cannot discriminate against pregnant and parenting students. Some of the proposed language will be changed to better reflect the protections against sex discrimination that students may experience because of their potential to become pregnant. The new language would prohibit discrimination based on “current, potential, or past pregnancy or related conditions.” The language would also clarify that the term “related conditions” includes childbirth, termination of pregnancy, lactation, and “medical conditions” or “recovery” related to any of these conditions.

• There is also proposed language defining a school’s responsibilities to pregnant and parenting students, Title IX coordinator responsibilities, how schools must treat absences, obtain doctor’s notes, and provide services and supports for pregnant and parenting students.

LGBTQ+ Students
One of the most profound changes that the new rules will include are the protections for LGBTQ+ students from discrimination based on sexual orientation, gender identity and sex characteristics. The proposed regulations are expected to clarify that Title IX’s prohibition on discrimination based on sex applies to discrimination based on sexual orientation and gender identity. They would make clear that preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX, except in some limited areas set out in the statute or regulations. By providing this protection, the new rules would carry out Title IX’s nondiscrimination mandate and help to ensure access to an education free from sex discrimination for LGBTQ+ students.

Under the new regulations, the Title IX rules would clarify for the first time that “sex discrimination” under Title IX includes discrimination based on sexual orientation, gender identity, sex-related characteristics, status as transgender or nonbinary, or sex stereotypes. In addition, LGBTQ+ students must be allowed to participate fully in school. In other words, every student has the right to be who they are at school, including using school facilities, dressing, being addressed by staff and students, and otherwise participating in schools in a manner consistent with their gender. The proposed rules would make clear that while schools may generally maintain separate restrooms for male and female students and staff, they may not deny student access to facilities that are consistent with their gender.

The proposed rules that are slated to be issued in May 2023 will not directly address athletics but will make clear that the law prohibits schools from excluding students from activities, which would include school sports and other activities, because they are transgender or intersex. In its press release June 23, 2022, the Department of Education indicated that it plans to issue a separate proposed Title IX rule to address equal opportunities to play school sports. No timeline for the issuing of these rules has been announced.

To prepare for the changes to the Title IX rules, school leaders should anticipate spending the summer months of 2023 gearing up for those changes. This means revising policies and procedures and making sure that necessary personnel and infrastructure are in place to implement compliance with the new rules. Schools should continue training staff and plan proactive measures that address areas that are known concerns or issues.

Title IX teams should review the school’s current sexual misconduct policies and procedures and make the necessary changes to be in compliance with the law. Ensure all current members of the Title IX team are identified, trained and prepared to respond to reports and complaints of sexual harassment.

References

1. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41390, 41571 (proposed July 12, 2022) (to be codified at 34 C.F.R. pt. 106) [hereafter Proposed Rules], available at http://federalregister. gov/d/2022-13734 (proposed 34 C.F.R. § 106.10).

2. Proposed Rules, 87 Fed. Reg. at 41569 (proposed 34 C.F.R. §§ 106.2(1), (3)).

3. See, e.g., Department of Education, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014; rescinded Sept. 22, 2017). https://www2.ed.gov/about/offices/ list/ocr/docs/qa-201404-title-ix.pdf; Department of Education, Office for Civil Rights, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011; rescinded Sept. 22, 2017), https://www2.ed.gove/ about/offices/list/ocr/letters/colleague-201104.pdf; Department of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 66 Fed. Reg. 5,512 (Jan. 19, 2001; rescinded Aug. 14, 2020), https://www2.ed.gov/about/offices/list/ ocr/docs/shguide.html; Department of Education, Office for Civil Rights, Sexual Harassment Guidance, 62 Fed. Reg. 12,034 (Mar. 13, 1997).

4. Proposed Rules, 87 Fed. Reg. at 41569 (proposed 34 C.F.R. § 106.2(2)).

5. Proposed Rules, 87 Fed. Reg. at 41569 (proposed 34 C.F.R. §§ 106.2(2)(i)-(vii)).

6. Proposed Rules, 87 Fed. Reg. at 41572 (proposed 34 C.F.R. § 106.44(a)).

7. Proposed Rules, 87 Fed. Reg. at 41572 (proposed 34 C.F.R. § 106.44(b)).

8. Proposed Rules, 87 Fed. Reg. at 41436.

9. Proposed Rules, 87 Fed. Reg. at 41571 (proposed 34 C.F.R. § 106.40(b)(1)).

10. Proposed Rules, 87 Fed. Reg. at 41568 (proposed 34 C.F.R. § 106.2) (“pregnancy or related conditions”).

11. Proposed Rules, 87 Fed. Reg. at 41571 (proposed 34 C.F.R. § 106.10).