NAICU Washington Update

Title IX Proposed Rules Released

June 24, 2022

On the 50th anniversary of the passage of Title IX, the Department of Education released it’s long-awaited proposed regulations to amend the rules governing how colleges and universities handle sex discrimination on their campuses.

Unlike the Trump Administration’s Title IX regulations, which addressed sexual harassment only, the Biden Administration’s proposed rules would expand coverage to apply more broadly to all forms of sex discrimination, including discrimination on the basis of sexual orientation and gender identity. Notably, however, the Department declined to address how Title IX should be applied in the context of athletics, stating that the agency will instead engage in a separate rulemaking on criteria regarding transgender student’s eligibility to participate on sex-segregated athletic teams.

The new rules, which are expected to provide additional flexibility and to streamline some of the most prescriptive procedural requirements that currently apply to Title IX sexual harassment claims, are 700 pages long and will take additional time to parse. NAICU will provide more detailed analysis in the coming weeks, but in the meantime, below is a description of some of the key provisions.

The proposed regulations would:
  • Prohibit all forms of sex discrimination, including:
    • Sexual harassment, including:
      • Quid pro quo harassment and hostile environment harassment;
    • Sexual violence, including:
      • Sexual assault, dating violence, domestic violence, and stalking;
    • Discrimination based on sex stereotypes or characteristics, pregnancy or related conditions, sexual orientation, and gender identity;
  • Permit, but not require, a live hearing and cross-examination;
  • Allow informal resolution; and
  • Preserve existing religious exemptions.
The Department has provided a fact sheet and summary of the major regulatory provisions. There will be a 60-day public comment period dated from the time the regulations appear officially in the Federal Register, which is expected in approximately one week.

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