Commemorating the 50th anniversary of Title IX, on June 23, 2022, the U.S. Department of Education released for public comment proposed changes to the regulations that help elementary and secondary schools and colleges and universities implement this vital legislation. As anticipated, the proposed amendments eliminate many of the new requirements imposed by the 2020 regulations adopted under Betsy DeVos (the “2020 Regulations”). The proposed regulations will reinstate and codify aspects of the Obama-era guidance, and provide significant additional protections against discrimination on the basis of sex, particularly for LGBTQI+ students.
The proposed regulations will advance Title IX's goal of ensuring that no person experiences sex discrimination, sex-based harassment, or sexual violence in education. The regulations will require that all students receive appropriate supports in accessing all aspects of education. They will strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity. And they will require that school procedures for complaints of sex discrimination, including sexual violence and other sex-based harassment, are fair to all involved.
The Notice of Proposed Rulemaking consists of some 700 pages, including a 650-page preamble of explanatory materials and 50 pages of proposed new regulations. The Department's proposed Title IX regulations will be open for public comment for 60 days from the date of publication in the Federal Register.
Key changes to the Title IX regulations include:
- The expanded jurisdictional reach of Title IX - Institutions would be required to apply their Title IX policies and procedures to sex-based harassment that occurs outside of the United States, providing coverage for study-abroad programs.
- Who can assert a Title IX complaint - The new rules would allow a student to assert a Title IX complaint even if he or she has withdrawn or graduated from the institution.
- Elimination of the live hearing requirement (Higher education only)
- Preponderance of the evidence standard applies - Institutions would not have a choice between a preponderance of the evidence and clear and convincing evidence standard.
- Institutional response required for all prohibited sex discrimination - The 2020 Regulations define institutional responsibility based on an institution's actual knowledge of sexual harassment or allegations of sexual harassment. The proposed rules will require prompt action to end any sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effect.
- Updated pregnancy-related protections - The proposed regulations clarify and expand protection for students and employees from discrimination based on pregnancy or related conditions in admissions, employment, or other education programs or activities.
We will be monitoring the outcome of comment process for the proposed rule, and will provide further updates as the final regulations are published.
Additional information on the proposed rule, including a summary with background information and a fact sheet, is available at: FACT SHEET: U.S. Department of Education's 2022 Proposed Amendments to its Title IX Regulations.
The unofficial version of the proposed rule is available at: Title IX of the Education Amendments of 1972 (PDF).