NAICU Washington Update

Title IX Sexual Harassment Guidance Released

July 23, 2021

As part of its comprehensive review of Title IX, the Department of Education issued new Title IX guidance on sexual harassment this week. The 67-page Q&A document is intended to clarify questions that have arisen with respect to the 2020 regulations and identify areas of flexibility for institutions of higher education.  The guidance is one of several developments that took place this week regarding Title IX. 

In general, the new Q&A largely reiterates previous guidance, as well as information originally set forth in the preamble to the 2020 regulations. Topics covered in the guidance include general obligations under Title IX, the definition of sexual harassment and where it occurs, institutional notification of and response to sexual harassment, formal complaints, the online grievance process, supportive measures, time frames for resolving complaints, live hearings and cross-examination, standard of proof, informal resolution, retaliation, and the religious exemption. 

The guidance also contains an accompanying appendix that provides examples of model policies that schools may wish to adopt or adapt for purposes of implementing the regulations on their campuses. 

The new guidance is the second step in the Biden Administration’s review of Title IX. The first step in the Department’s review was a public hearing to solicit stakeholder feedback on Title IX regulations, guidance, and related policies. The third and final phase is to undertake a new rulemaking process to rewrite the 2020 regulations. Until new regulations go into effect, however, the 2020 regulations remain in place. 

Two other Title IX-related developments occurred this week. First, the Senate Health, Education, Labor, and Pensions (HELP) Committee has delayed a confirmation vote on the nomination of Catherine Lhamon to serve as the Assistant Secretary for Civil Rights at the Department. Senator Richard Burr (R-NC), the ranking Republican on the HELP Committee, announced that he will oppose Lhamon’s nomination, and other Republican Senators are likely to follow suit.

Second, a federal judge issued a temporary injunction halting implementation of a new West Virginia law that bars transgender female students from joining athletic teams that match their gender identity. Multiple states have enacted similar laws, and more litigation on this issue is expected to follow. 

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