On the 50th anniversary of Title IX and the day before the Supreme Court overturned Roe v. Wade, the U.S. Department of Education issued long-anticipated proposed Title IX regulations. The proposed regulations were published in the Federal Register and are now open for public comment until September 12, 2022. A fact sheet and summary of major provisions are available on the Department’s website.
The proposed regulations are notable in several respects. They would:
- Expand the scope of prohibited sex discrimination and sex-based harassment to include sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
- Apply to all sex discrimination occurring under a recipient’s education program (including conduct that occurs in a building owned or controlled by a student organization that is officially recognized and conduct that is subject to the institution’s disciplinary authority) or activity in the United States. Universities have an obligation to address a sex-based hostile environment under its education program or activity, even if sex-based harassment contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States.
- Define hostile environment harassment as unwelcome sex-based conduct that is sufficiently “severe or pervasive,” rather than “severe, pervasive, and objectively offensive.” Under the proposed standard, the conduct would be evaluated based on the totality of the circumstances, subjectively and objectively, to assess whether it “denies or limits” a person’s “ability to participate in or benefit from” the education program or activity (under the current standard, the conduct must effectively deny a person equal access to the recipient’s education program or activity).
- Require institutions to take prompt and effective action to end any prohibited sex discrimination, prevent its recurrence, and remedy its effects (and not just when there is “actual knowledge”).
- Define the group of employees who must notify the Title IX Coordinator of conduct that may constitute sex discrimination (e.g., mandatory reporters).
- Expand opportunities for voluntary informal resolution, except when an employee is accused of sex discrimination against a student.
- Modify grievance procedures for all forms of sex discrimination to permit either a single investigator model or a live hearing; establish the preponderance of the evidence standard in most cases; and establish acceptable methods of assessing credibility other than cross-examination by an advisor.
- Enhance retaliation prohibitions with new definitions, including “peer retaliation.”
- Create additional protections and reasonable modifications for students and employees based on pregnancy and related conditions, as well as “parental status.”
- Require additional notice, training, and education requirements to ensure that community members understand their rights and reporting options with greater transparency.
Notably, the proposed Title IX regulations do not address the rights of transgender students in athletics. The Department plans to issue a separate notice of proposed rulemaking to address “the question of what criteria, if any, recipients should be permitted to use to establish students’ eligibility to participate on a particular male or female athletics team.”