The major provisions of the proposed regulations are summarized as follows:
- Prohibiting all forms of sex discrimination. The proposed regulations clarify that sex discrimination prohibited by Title IX includes discrimination based on sex stereotypes, pregnancy and related conditions, sexual orientation, and gender identity. The existing regulations do not address whether Title IX covers discrimination on the basis of gender identity or sexual orientation, but note in the preamble the position of the U.S. Supreme Court in then-pending cases that (1) the ordinary public meaning of “sex” was limited to biological sex at the time Title VII was passed (the interpretation of Title IX is often based on that of Title VII) and (2) discrimination based on transgender status does not constitute sex. The new rule would not apply to practices otherwise permitted by Title IX, for example admissions practices of traditionally single-sex postsecondary institutions or when permitted by a religious exemption.
- Defining sex-based harassment. The proposed regulations include all forms of harassment in sex-based harassment under Title IX, including unwelcome sex-based conduct that creates a hostile environment by denying or limiting a person’s ability to participate or benefit from a program or activity.
- Response to sex discrimination. Under the proposed regulations, Recipients would be required to address conduct that is (1) off-campus where the respondent is a representative of the Recipient or engaged in conduct under the Recipient’s authority, or (2) occurs in a building owned or controlled by a student organization officially recognized by a postsecondary educational institution. Further, Recipients would be required to offer an informal resolution process if appropriate whenever it receives a complaint of sex discrimination or has information about conduct that may constitute sexual discrimination. The current regulations permit informal resolution only if a formal complaint has been filed.
- Updating requirements for a Recipient’s grievance procedures. The proposed regulations clarify that Title IX’s procedural requirements apply to all complaints of sex discrimination (not just sexual harassment) and aim to provide a more flexible framework for grievance procedures to account for differences in age, maturity, needs, and level of independence of students in various educational settings. Notably, the regulations would eliminate the requirement that postsecondary Recipients conduct live hearings with cross-examination. The proposed regulations also seek to account for the particular contexts of employees and third parties. For example, with respect to employees, the proposed grievance procedures would not apply to any action a Recipient would take as part of its obligations to employees under Title VII; with respect to third parties, the third party must be participating or attempting to participate in the Recipient’s educational program or activity when the alleged sex discrimination occurred.
- Expanded support for students affected by conduct that may constitute sex discrimination. The proposed regulations would establish a school’s duty to offer supportive measures to students experiencing any form of sex discrimination (not just sexual harassment) in order to preserve their access to an education program or activity. Further, the regulations clarify that Title IX protects those who provide information about alleged discrimination, or otherwise participate in a school’s Title IX process, against retaliation, including peer retaliation.
- Rights of former students or employees. The proposed regulations would protect the right to file a complaint about sex discrimination even if the complainant has already left the Recipient’s education program or activity as a result of the alleged discrimination or for other reasons.
- Clarifying the legal rights of a parent or guardian. The proposed regulations clarify that—in the elementary and secondary school contexts only—an authorized legal representative has the right to act on behalf of a complainant, respondent or other persons, including, without limitation, by making a complaint. Students at postsecondary institutions are required to self-advocate.
- Transgender participation in sports to be addressed separately. The ED indicated that it would address Title IX’s application to athletics, and in particular, the criteria Recipients may use to establish eligibility to participate on a male or female athletic team, in a separate rulemaking.
In connection with the NPRM, ED published a fact sheet and chart summarizing the proposed amendments. The proposed regulations will be open for public comment for sixty days from the date of publication in the Federal Register.
