In celebration of this landmark civil rights law addressing discrimination on the basis of sex, the United States Department of Education released for public comment a 700-page proposal of changes to the regulations that will, among other things, address cases of sexual assault in educational settings, expand the definition of sexual harassment, strengthen protections for LGBTQI+ individuals and prohibit discrimination based on sexual orientation and gender identity, in addition to sex.
The rule will also reverse many of the Trump administration regulations for investigating cases of discrimination, which currently only require educational institutions to investigate formal sexual harassment complaints. Unlike the Trump administration’s requirements, the proposed rules contain more robust provisions for both complainants and respondents. It aims to allow colleges more flexibility to develop their own grievance procedures and policies and would require schools to investigate all complaints of sexual harassment. However, unless and until the proposed rule is approved, the Trump era regulations will remain in place.
Indeed, the Department’s review of the Title IX regulations began in March 2021, in response to Executive Order 14021, which was aimed to guarantee “an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment,” including discrimination on the basis of sexual orientation or gender identity. Since that time, the Department sought input from a wide variety of sources, including students, parents, lawyers and other advocates and reviewed existing case law, which highlighted the need to revise the current regulations. Over the next 60 days, the proposed rule will undergo public comment. It is expected that the rule will be heavily criticized and parts of the regulations may even be challenged in court.
While not part of these proposed regulations, the Biden administration will also engage in a separate rule-making process to address student athletes, mostly in response to the evolving legal landscape surrounding transgender collegiate athletes. Indeed, the Obama administration’s Title IX guidance recognized that denying transgender students access to a sports team aligned with their gender identity violated Title IX. However, that guidance was rescinded by the Trump administration. It is unclear when this rule-making process will begin.
Co-authors Lisa Lori, chair and Stephanie Wolbransky, associate are members of the higher education practice group at Klehr Harrison.