On May 26, 2023, the U.S. Department of Education (DOE) published the upcoming date of the final Title IX of the Education Amendments 1972 regulations (Title IX) to October 2023. In July 2022, the Department published proposed regulations for Title IX that sought to protect students from sexual harassment and assault and LGBTQI+ students from discrimination. Since then, the DOE received and reviewed more than 240,000 public comments on the proposed changes. The DOE also anticipates releasing its proposed Athletics regulation in October 2023, which received over 150,000 comments from April to May 2023.
The Title IX updates seek to better define and protect students and employees from sex discrimination and harassment. To do so, the updated language clarifies that the prohibition of discrimination based on sex includes discrimination based on sex stereotypes, pregnancy status, sexual orientation, and gender identity. Schools must provide supportive measures for students who have brought complaints or been accused of sex discrimination; previously, this only applied to situations involving sexual harassment. The new regulations also clarify that Title IX applies to discrimination based on sexual orientation and gender identity and make clear that, except in limited areas set out by statute or regulations, preventing students from participation in activities consistent with their gender identity causes harm in violation of Title IX.
The DOE also seeks to expand the ability of affected parties to seek recourse under Title IX. The proposed regulations clarify and bolster the rights of parents and guardians to act on behalf of a student in secondary or elementary school. In addition, schools must share their nondiscrimination policies with all students, employees, and other participants in their programs or activities. The proposed regulations also seek to protect those who report retaliation both from the school and peers.
Further, the DOE revised requirements so that schools are required to respond promptly to investigations of all sex discrimination complaints, compared to the current requirements, which only cover formal complaints of sexual harassment. Schools would also have to train employees to notify the Title IX coordinator and respond to allegations of sex-based harassment. The new regulations also update the investigation procedures and include requirements like requiring schools to have a process for decision-makers to assess the credibility of parties and providing both parties an equal opportunity to present evidence.
The DOE released the proposed changes separately for athletics. These changes continue to ensure that women and girls are provided an equal athletic opportunity and expand that definition to disallow schools from a categorical ban on transgender students participating on teams that align with their gender identity. The DOE’s changes instead allow schools to be flexible, allowing them to create instead team eligibility criteria that serve important educational objectives, like preventing sports-related criteria. Schools would also have to create criteria that minimize harm to students who may be limited or denied from participating in male or female teams consistent with their gender identity. Under these regulations, the DOE expects that elementary schools would allow students to participate in school sports teams consistent with their gender identity, but that sex-related criteria may be permitted in some cases for high school and college-age students. This aligns with Congress indicating in the Education Amendments of 1974 Section 844 that athletic contexts present special considerations.