June 23, 2022, marked the 50th anniversary of Title IX and the unveiling of proposed new regulations by the Biden administration. For the first time, gender identity and sexual orientation are specifically protected.
According to the U.S. Department of Education (DOE), the changes will “strengthen protections for LGBTQ+ students by clarifying that Title IX’s protections against discrimination based on sex apply to discrimination based on sexual orientation and gender identity.”
The announcement of the proposed amendments follows a DOE review in March 2021, a virtual public hearing in June 2021, and reviews by the federal Office of Information and Regulatory Affairs and the Department of Justice. Many of the changes made to Title IX during the Trump administration would be eliminated.
Before the proposals can become law, DOE’s Office of Civil Rights will consider feedback submitted during the public comment period, which ends on Sept. 12, 2022.
Expanded Definition of Sexual Harassment
Proposed regulations broaden Title IX’s protections against sexual harassment.
The revamped regulations would define sex-based harassment to include conduct related to the following:
- Sex Stereotypes
- Pregnancy or Related Conditions
- Sexual Orientation
- Gender Identity
The current regulation applies to conduct that is “so severe, pervasive, and objectively offensive” that it deprives a student of equal access to programs or activities. The proposed regulations cover conduct that is “severe or pervasive,” creating a hostile environment that denies or limits someone’s ability to participate in or benefit from the school’s programs or activities.
Certain off-campus conduct would fall under Title IX protections in the revised amendments. Colleges and universities would be required to investigate sex-based harassment that occurs off campus if the harassment contributes to a hostile environment within a school’s education programs or activities.
According to a statement from DOE, other proposed regulations include the following:
- Protect the right of parents and guardians to support their elementary and secondary school children.
- Require schools to take prompt and effective action to end any sex discrimination in their education programs or activities – and to prevent its recurrence and remedy its effects.
- Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decision makers to evaluate the evidence.
- Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.
- Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights.
- Improve the adaptability of the regulations' grievance procedure requirements so that all recipients can implement Title IX's promise of nondiscrimination fully and fairly in their educational environments.
- Ensure that schools share their nondiscrimination policies with all students, employees, and other participants in their education programs or activities.
Separate Notice Will Address Athletic Eligibility
The additions recently revealed do not distinctly add guidance about how gender identity and other characteristics impact eligibility to participate in school athletic teams. Several states have passed laws that limit the ability of a person to play on a team outside of their birth gender. The controversy continues to make headlines, including the recent nomination of a transgender woman being nominated for NCAA Woman of the Year by the University of Pennsylvania.
The DOE said it will conduct a separate proposed rulemaking that addresses Title IX regulations and the eligibility for participation on male and female athletic teams.
Monitoring the Impacts of Title IX Changes
Title IX accusations can negatively affect educational and career goals. If you are or believe you could be a target in a Title IX investigation, contact us right away. Schedule a consultation by calling (737) 200-2332.