On the 50th anniversary of the signing of the Title IX, the U.S. Department of Education proposed several noteworthy changes that provide additional protections against pregnancy discrimination, gender identity discrimination and sexual orientation discrimination. The proposed regulations also restore the definition of hostile environment sexual harassment to a broader category of unwelcome sex-based conduct that was used during the Obama Administration. In addition, the proposal modifies the application of the grievance procedures to all complaints of sex discrimination – a notable expansion from the existing regulations which apply only to complaints of sex harassment.
The Department of Education provided a fact sheet and chart summarizing the proposed changes. Over the next 60 days, school administrations should take this time to review the amendments.
Some of the proposed changes would reverse the effects of regulations that were last updated in May of 2020. A notable change for postsecondary institutions is the removal of the “live hearing” requirement. As proposed, the requirement to have a “live hearing,” which allowed the accused to cross-examine the complainant, would no longer be required. Rather, a school would need to establish a process for a neutral decisionmaker to assess the credibility of the parties and their witnesses. Further, the regulations seek to also provide parents of K-12 students with additional rights in the grievance procedure. The regulations also address protection for LGBTQI+ students by including sexual orientation, gender identity and sex stereotypes under its definition of sex-based discrimination. The proposed regulations do not go so far as to provide any specific requirements for schools in the context of male and female athletics team, though. According to a statement, the the Department of Education “plans to issue a separate notice of proposed rulemaking” to address what criteria schools may use to establish “students’ eligibility to participate on a particular male or female athletic team.”
The regulations also seek to expand protections for student’s that are parents or going through pregnancy or childbirth. As proposed, the regulations would expand the definition of “parental status” to include adoptive parents, stepparents or legal guardians and would increase the requirements of schools with regards to reasonable accommodations for these individuals.
Additionally, the Department said the proposed amendments would:
- Clarify, expand and enhance the definitions of various terms and add additional requirements to the grievance procedures
- Enhance the requirements for grievance procedures for postsecondary institutions for complaints of sex-based harassment involving students
- Define the term “pregnancy or related conditions” and the term “parental status,” and prohibit discrimination against students and applicants for admission or employment on the basis of current, potential or past pregnancy or related conditions
- Expand the ability of schools to offer informal resolution immediately upon receiving a complaint or other information that may constitute sex discrimination under Title IX in its education program or activity
- Articulate the department’s understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, sexual orientation, gender identity and pregnancy or related conditions
- Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures and recordkeeping
- Specify that a school or institution must train a range of relevant persons on the school or institution's obligations under Title IX
- Clarify that, unless otherwise provided by Title IX or the regulations, a school or institution must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity
- Clarify a school or institution's obligation to address retaliation.
The full Notice of Proposed Rule Making, including all proposed regulations, can be accessed here. While no immediate action is required by schools or institutions, schools should take this opportunity review and discuss the proposed changes and submit any comments about the recommended changes so the department has the input of all stakeholders. Comments can be submitted to the Federal Register here and must be received by September 12, 2022.
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