In celebration of the 50th anniversary of Title IX, the U.S. Department of Education released for public comment on June 23, 2022 proposed changes to the Title IX regulations applicable to elementary and secondary schools, as well as post-secondary educational institutions.
The Department of Education stated that the proposed regulations will advance Title IX’s goal of ensuring that no person experiences sex discrimination in education, that all students receive appropriate support as needed to access equal educational opportunities, and that school procedures for investigating and resolving complaints of sex discrimination, including sex-based harassment and sexual violence, are fair to all involved.
Among some of the significant changes, the proposed regulations:
- would expand the definition of sexual harassment.
- would cover all forms of sex-based harassment, including unwelcome sex-based conduct that creates a hostile environment by denying or limiting a person’s ability to participate in or benefit from a school’s education program or activity.
- would require schools to address a sex-based hostile environment in its education program or activity, including when sex-based harassment contributing to the hostile environment occurred outside the school’s education program or activity or outside the United States.
- would clarify that Title IX’s prohibition of discrimination based on sex includes protections against discrimination based on sex stereotypes, sex characteristics, pregnancy, pregnancy-related conditions, sexual orientation and gender identity.
- would make clear that preventing someone from participating in school programs and activities consistent with their gender identity would violate Title IX, except in some limited areas set out in the statute or regulations.
- would strengthen requirements that schools provide reasonable modifications for pregnant students, reasonable break time for pregnant employees, and lactation space.
- would strengthen clear protection for parents, guardians, and other authorized legal representatives of students to act on behalf of a student, including by seeking assistance under Title IX and participating in any grievance procedures.
- would require schools to provide clear information and training on when their employees must notify the Title IX Coordinator about possible sex discrimination and how students can report sex discrimination for the purpose of seeking confidential assistance only, or for the purpose of asking the school to initiate its grievance procedures.
- would require schools to adopt grievance procedures which include several specific requirements, but may vary based on the age, maturity, and level of independence of students in the educational setting.
- would establish clear requirements for schools to conduct a prompt, reliable and impartial investigation of all complaints of sex discrimination.
- would permit the Title IX Coordinator/investigator to be the decision-maker.
- would permit a school to offer a voluntary informal resolution process, if appropriate, whenever it receives a complaint of sex discrimination or has information about conduct that may constitute sex discrimination under Title IX in its education program or activity.
The Department will engage in a separate rulemaking process to address Title IX’s application to athletics.
The Department of Education’s proposed Title IX regulations will be open for public comment for 60 days from the date of publication in the Federal Register. The current Title IX regulations issued under the Trump administration remain in effect until a final rule is issued and effective. This means that schools must continue to comply with the current regulations throughout the rulemaking process.
Please contact Sara Visingard or the attorney with whom you typically work for related questions or guidance.
This alert is not a substitute for advice of counsel on specific legal issues.
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