In late June, the U.S. Department of Education released a draft version of changes to Title IX rules that would define the concept of “sex” to include gender identity and sexual orientation, as well as extend protections against discrimination on the basis of sex stereotypes, sex characteristics and pregnancy or related conditions. The regulation would overturn rules previously published by former Secretary of Education Betsy DeVos that focused on how schools respond to allegations of sexual harassment and assault and will codify safeguards for students, especially transgender students.
The proposed rule will also change a number of other definitions for K-12 schools and institutions of higher education, as well as for vocational education institutions. Similar to the existing rule, it defines sex-based harassment as “unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.” However, it also extends the definition to include dating violence, stalking and other activities.
The Education Department says in the proposed rule that Title IX requires entities to respond to discrimination even if it occurs off campus so long as it is within the educational program or activity — including if the conduct in question occurs in a building owned or controlled by an officially recognized student organization ( i.e., a fraternity or sorority), during school-based online interactions or on a school field trip. There is also a new proposed notification requirement, which would require certain employees to notify an entity’s Title IX coordinator when they have information about conduct that may constitute sex discrimination, and to provide any individual who shares information about such conduct with the contact information for the Title IX coordinator. The Education Department stated it will engage in a separate rulemaking process on athletics.
The proposed rule on Title IX of the Education Amendments of 1972 was officially published in the Federal Register on July 12, 2022. Stakeholders may submit comments directly through the Federal Register portal on or before Sept. 12, 2022. It is likely that the Education Department will receive a significant number of comments on the proposed rule as the prior Title IX rule, published by the Trump Administration, received over 100,000 comments. Access the portal to submit comments »
