Anticipating The Impact Of 2 Impending New Title IX Rules
This article was written for Law 360 and was published September 12, 2023.
The U.S. Department of Education is expected to finalize two major amendments to Title IX of the Education Amendments of 1972 as early as October — one concerning sexual harassment grievance procedure and the other concerning gender identity in athletics.
Both rules are expected to have a significant impact on those pre-K-12 and higher education institutions that strive to stay compliant under the legal framework that operates to eliminate sex-based discrimination in education.
Timing of the Amendments
Title IX prohibits sex discrimination in any education program or activity receiving federal financial assistance.
Proposed in June 2022, the Title IX sexual harassment grievance procedure rule would substantially alter the process and criteria that schools must use for sexual harassment and other sexual discrimination complaints.
Proposed in April, the Title IX gender identity and athletics rule provides guidance and tests for schools concerning limiting student participation in athletics based upon gender identity.
The grievance procedure rule received approximately 240,000 comments, and the athletics rule received approximately 150,000 comments. Due to the volume of comments for the proposed rules, the DOE announced in May that the two rules would not be finalized until October at the earliest.
Once the DOE issues a final rule, generally, it will not go into effect until at least 30 days after the date of publication in the Federal Register.
Features of the Proposed Grievance Procedure Rule
Currently, schools are expected to follow the Sexual Harassment Guidance Procedure requirements implemented under the Trump administration in 2020.
In announcing[1] the proposed grievance procedure rule,[2] the DOE lauded the celebration of the 50th anniversary of Title IX and stated that the purpose of the proposed rule was to "restore vital protections for students in our nation's schools which were eroded by controversial regulations implemented during the previous Administration."
Among the priorities of the current administration reflected in the proposed rule are explicit protections for sex stereotypes, pregnancy, sexual orientation and gender identity.
For instance, the proposed regulation expands the definitions in Title 34 of the Code of Federal Regulations, Part 106.2, to include sexual harassment as well as discrimination on the basis of "sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity."
The proposed rule follows the historic 2019 U.S. Supreme Court decision in Bostock v. Clayton County, wherein the high court held that Title VII, the employment law parallel to Title IX, prohibits firing a person on the grounds that they are gay or transgender.[3]
The proposed rule also echoes increased protection for individuals on the basis of pregnancy as seen in the Pregnant Workers Fairness Act, which went into effect in June, by explicitly protecting students and employees who are pregnant or have pregnancy-related conditions.[4]
One big change with the proposed rule is that schools will be expected to swiftly respond to not just formal Title IX complaints, but also informal ones. The proposed rule does away with the requirement that a formal complaint has to be filed or signed to initiate the complaint process.
Further, the proposed rule lowers the standard of establishing a hostile environment by replacing the "severe, pervasive, and objectively offensive" definition with "severe or pervasive" definition.
Another big change in the proposed rule relates to the education program or activity standard. Under current regulation and the body of case law, whether a particular education program or activity is subject to Title IX requires examination of whether the school has substantial control over both the respondent and the context in which the sexual harassment occurred.
The proposed rule changes this standard dramatically and calls for consideration of whether the conduct is subject to the school's disciplinary power by evaluating the time and ability for the school to discipline, even after the fact. Also, the proposed rule will change how schools address off-campus behavior.
The current rule mandates dismissal of a Title IX complaint if the conduct did not occur in a school's education program or activity or against a person in the U.S. However, the new rule permits dismissal but generally requires schools to address conduct even if the sex-based harassment contributing to the hostile environment occurred outside the school's education program or activity or outside the U.S.
Finally, the proposed rule also expands upon and clarifies requirements concerning designating a Title IX coordinator, disseminating nondiscrimination notices, adopting grievance procedures, recordkeeping, and training of relevant personnel.
For instance, the new rule has new specific requirements for training of Title IX coordinators and deputy coordinators, individuals deemed to be so-called confidential employees, and requires all employees to obtain some degree of training.
Also, the proposed rule clarifies a school's obligation to address retaliation — that schools must not only protect an individual who exercises, or assists in the exercise of, Title IX rights from retaliation by the school or school personnel, but also retaliation from other students.
Features of the Proposed Gender Identity in Athletics Rule
The proposed gender identity in athletics rule addresses the recent slew of controversy with K-12 and higher education institutions concerning transgender athletes. The rule furthers the fundamental requirement under Title IX that schools must provide equal athletic opportunities for students regardless of sex.
The DOE explicitly acknowledged in its fact sheet that it heard repeatedly that many schools, students, parents, and coaches face uncertainty about when and how transgender students can participate in school sports, particularly because some states have chosen to adopt new laws and policies on athletics participation that target transgendered students.[6]
The proposed rule applies to public K-12 schools as well as colleges, universities and other institutions that receive federal funding.
Under the proposed rule, policies that categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are would be deemed violative of Title IX. The proposed rule makes clear that a one-size-fits-all approach would not be permitted.
However, the proposed rule provides flexibility for schools in certain instances, particularly in competitive high school and college athletic environments, to adopt a policy that limits transgender students' participation.
Among other things, the rule proposes amending Title 34 of the Code of Federal Regulations, Part 106.41(b).
The change addresses cases in which a recipient adopts or applies sex-related criteria that would limit or deny students' eligibility to participate on an athletic team consistent with their gender identity.
In those cases, the sex-related criteria must for each sport, level of competition, and grade or education level:
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- Be substantially related to the achievement of an important educational objective; and
- Minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.
In other words, under the proposed rule, a school's use of sex-related criteria would not be prohibited altogether. Instead, the rule would require that a school met the articulated standard for any sex-related criteria that would limit or deny students' eligibility to participate on a male or female team consistent with their gender identity.
For instance, in its fact sheet, the DOE explained that the proposed rule accounts for schools' ability to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.
As an illustration, in competitive college sports, the NCAA has adopted a sports-specific approach for eligibility criteria for male and female teams that may be considered.
Under the rule, not all student-athletes in all grade levels will be subject to the same requirements. For instance, "elementary school students would generally be able to participate on school sports teams consistent with their gender identity where considerations may be different for competitive high school and college teams."
Likewise, in less competitive sports such as intramural or junior varsity teams where all or most students are allowed to participate, or no-cut teams, student-athletes likely should be able to participate on a team consistent with their gender identity.
Conclusion
Big changes are on the horizon with the proposed amendments to Title IX regulations concerning the sexual harassment grievance procedure rule and gender identity in athletics. The DOE is anticipated to release the final rule as early as October.
[1] https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm-factsheet.pdf.
[2] https://www.govinfo.gov/content/pkg/FR-2022-07-12/pdf/2022-13734.pdf.
[3] https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf.
[4] https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
[5] https://www.govinfo.gov/content/pkg/FR-2023-04-13/pdf/2023-07601.pdf.
[6] https://www2.ed.gov/about/offices/list/ocr/docs/t9-ath-nprm-factsheet.pdf.
