In conjunction with the 50th anniversary of Title IX, the U.S. Department of Education has released proposed amendments to the regulations for Title IX for public comment. US DOE also released a fact sheet on the draft rules as well as a summary of the draft rules’ major provisions.
Title IX prohibits discrimination based on sex in any school that receives federal funding. The proposed amendments would make several key changes to the existing Title IX regulations, including:
- Clarifying that Title IX’s protections against discrimination based on sex apply to discrimination based on sex stereotypes, sex characteristics, pregnancy or pregnancy-related conditions, sexual orientation, and gender identity.
- Replacing the current definition of sexual harassment (unwelcome conduct determined to be “severe, pervasive, and objectively offensive”) with a broader definition of sex-based harassment (unwelcome sex-based conduct that is “sufficiently severe or pervasive”).
- Requiring districts to address a sex-based hostile environment under its education program or activity, even if the sex-based harassment contributing to that hostile environment occurred outside the district’s education program or activity or outside the United States.
- Making the live hearing and cross-examination requirement optional for postsecondary institutions.
- Requiring districts to provide supportive measures, as available and appropriate, to students and employees affected by any type of sex discrimination, including, but not limited to, sex-based harassment.
- Updating existing protections for students, applicants and employees who are pregnant or have pregnancy-related conditions.
US DOE also announced that it will release a separate notice of proposed rulemaking to address whether and how US DOE should amend the Title IX regulations to address students’ eligibility to participate on a particular male or female athletics team.
This is a proposed rule, not a final rule, so districts do not need to start updating their policies and procedures. Once the proposed rule is officially published in the Federal Register, the public will have 60 days to provide comments on the proposed amendments. US DOE will respond to all public comments, finalize the rule, and publish the final rule in the Federal Register. OSBA will be closely monitoring the rulemaking process and will provide updates and policy recommendations, as appropriate. In the meantime, if you have any questions about Title IX or the proposed amendments, please reach out to OSBA’s division of legal services.