On, June 23, 2022, on the 50th anniversary of Title IX of the Education Amendments of 1972 (“Title IX”), the U.S. Department of Education (the “Department”) issued new proposed amendments to its Title IX regulations. The Department stated that the proposed amendments restored vital protections for students in schools across the country, and strengthened protections for LGBTQI+ students.

The Department issued a summary of major provisions in the Notice of Proposed Rulemaking. A non-exhaustive list of significant changes are summarized below:

  • The Department clarified that all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity are protected under Title IX (emphasis added).
  • The definition of sexual harassment is now broader as whether harassment is severe or pervasive is based on the totality of the circumstances and considers both the subjective and objective viewpoints as well as expanding that the conduct may deny or limit equal access to an education program or activity.
  • The Department expands schools’ ability to regulate off-campus conduct that affects the educational program or activity, regardless of whether it occurred outside the school’s education program or activity or outside of the U.S.
  • The Department’s proposed rules also allow an individual to file a complaint of sex discrimination even if they choose to leave the education program or activity.
  • The proposed regulations require the following components for the grievance procedure:
    • complainant and respondent to be treated equitably at every stage of the process;
    • allows schools to offer informal resolution process regardless of whether a formal complaint has been initiated;
    • allows schools to proceed with a complaint regardless of receipt of a formal complaint from the complainant as determined appropriate by the school; and
    • allows the school to provide supportive measures as appropriate to the complainant and/or respondent to the extent necessary to restore or preserve that person’s access to an education program or activity.
  • The grievance procedures also propose a modification to allow the decision-maker to be the same person as the Title IX coordinator or investigator and other changes to the grievance procedures.
  • The new, proposed regulations also provide a proposed definition for retaliation, including peer retaliation.
  • The proposed regulations also eliminate the requirement that Title IX adjudications include a live hearing for higher education institutions.
  • The Department’s amendments propose the Title IX coordinator communicate with the IEP team or 504 team for students with disabilities.

The proposed regulations will be open for public comment for 60 days from the date of publication in the Federal Register. The Department also issued a fact sheet and the proposed rules online for everyone to review and comment on during the period of public comment.

 

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