The June 2022 announcement of proposed Title IX rules has compelled many states to choose whether to support or fight the potential changes.
Part of the federal rules-change process is a mandated public comment period. The Title IX changes advanced by the U.S. Department of Education (DOE) were followed by a 60-day comment period that ended Sept. 12, 2022. More than 235,000 comments were received by the deadline.
The proposed new rules focus on several areas:
- Expanding protections for pregnant students
- Widening the definition of sexual harassment
- Revising policies for the investigative and hearing processes
DOE’s proposed rule prohibits schools from excluding students from activities and programs based on their sexual orientation and gender identity but did not specifically address the controversy of transgender students participating in sports. The Education Department announced this issue will be explored in a separate rulemaking process.
Now that the time for comments has concluded, the department will begin to review comments and write final rules. No timeline has been announced for that process.
Until any change is finalized, the 2020 rules remain in effect.
17 States Oppose Title IX Proposed Rules
Montana Attorney General Austin Knudsen and 16 other attorneys general send DOE Secretary Miguel Cardona a 37-page letter outlining their concerns with the proposed rules. The group also asked that Assistant Secretary Catherine Lhamon recuse herself from the rulemaking process.
Knudsen wrote the “Department’s Proposed Rule conflicts with the text, purpose, and longstanding interpretation of Title IX. It also negatively impacts free speech, academic freedom, and campus life.”
The coalition of attorneys general fighting the rules changes includes these states:
- South Carolina
The states disagreed with the DOE including gender identity in the definition of sex, saying that sex means only the “immutable fact of being male or female.” The coalition of states also said the expansion of sexual harassment will harm protected speech, and the changes to Title IX removes crucial due process protections.
20 Attorneys General Show Support for Proposed Title IX rules
On the other side of the issue are 20 attorneys general who wrote support for what they said reverses “many of the critical missteps in the Department’s 2020 rulemaking, which have harmed and continue to harm our schools and our student community.” The submitted comments noted that the 2020 amendments turned Title IX investigations into quasi-criminal processes that discouraged students from coming forward with their sexual harassment claims.
The attorneys general signing a comment letter of support are from 20 states:
- District of Columbia
- New Jersey
- New York
- North Carolina
- Rhode Island
The attorneys general also showed approval for including gender identity in the definition of sex-based harassment. The 42-page letter included 4 pages of additional amendments and clarifications.
Legal Support for Title IX Accusations
At Parisi, Coan & Saccocio, PLLC, we focus our attention on defending those accused of Title IX violations. While Title IX accusations do not carry the weight of a criminal conviction, they do potentially impact the rest of your life. Students can lose their right to an education and faculty and staff can have their careers derailed.
If you are a student, faculty member, or staff person accused of Title IX violations, contact us for strategic advice and support through the Title IX process. Call (737) 200-2332 to schedule a case consultation.