On the 50th anniversary of Title IX, the Biden administration’s United States Department of Education issued a set of proposed regulatory changes to the landmark civil rights bill that aimed to enhance the abilities of an educational organization to implement these laws while not adding burdensome red tape to the process. In short, schools will have more flexibility in procedural aspects.
The Educational Amendments of 1972 included a section, known as Title IX, that expressly prohibited sex-based discrimination at any school or education program that receives funds from the federal government. When Title IX was implemented, only 42% of students at American colleges were women. After the law was passed, there was a considerable increase in the number of female students participating in organized sports.
These proposed changes are part of an ongoing effort to ensure that students are protected and not discriminated against on the basis of gender identity. The Department of Education conducted a comprehensive review of the Title IX regulation in March 2021 as a result of an executive order from President Joe Biden.
According to the fact sheet provided by the Department of Education, these new revisions to the Title IX regulations were needed in part because under the Trump administration, there were many forms of sex-based discrimination violations that were not considered Title IX violations. The comprehensive review aimed to reverse those policies to ensure equal protection under Title IX.
These most recent regulations are highlighted by much-needed protections for LGBTQ+ students and ensuring that school procedures for complaints of sex-based discrimination are fair and accessible to all parties involved. The ultimate goal? Protecting students from all forms of sex-based discrimination.
At the heart of the proposed changes lie a few key definitions and explanations surrounding LGBTQ issues. The hope is that these changes will eliminate any gray areas in the previously established regulations.
What qualifies as sex-based discrimination becomes more widely applied. Under the existing Title IX regulations, the process for filing a grievance based on sex discrimination is very particular and therefore necessarily narrow. The proposed changes would loosen the reins on how this is applied and would see colleges, universities, and other public education institutions fielding more complaints.
Protections for LGBTQ students would be greatly expanded. The new regulations make explicit reference to gender identity and sexuality which would codify an LGBTQ student’s ability to claim discrimination based on sex stereotypes, sex characteristics, pregnancy, sexual orientation, and gender identity.
1. Expedited complaint process.
The proposed changes to the resolutions would remove the antiquated and cumbersome separate 10-day review periods that are provided to both parties in the complaint process. The proposal removes the long review period and merely requires the investigator to provide a report with the relevant evidence to both parties along with a reasonable amount of time to respond. This would also establish the following requirements:
2. Schools must respond to off-campus discrimination.
Changes made in May 2020 were largely focused on discrimination in on-campus situations. The current proposed changes would charge higher-education entities with responding to sex-based discrimination charges within their educational systems even if they occur off-campus. Essentially, the schools are asked to consider how off-campus harassment affects students on campus.
3. Expanded definitions based on stereotypes and pregnancy.
Proposed changes would expand the scope of what is considered sex-based discrimination to include sex stereotypes and pregnancy. This distinction reduces ambiguity and ensures protection and the fulfillment of the Title IX mandate. These changes are important as new situations and terminologies have been introduced to society and as such, regulations must be amended to ensure they are up-to-date with the current culture.
4. Parents and guardians as advocates.
The proposed regulations would strengthen the ability of parents, guardians, and authorized legal representatives to act on behalf of students to help navigate the Title IX complaint process.
5. Protection from retaliation.
A very important component of the proposed regulations is the reaffirmation that those parties (students, teachers, etc.) who exercise their Title IX rights are not retaliated against. This prevents the very likely scenario that if those who want to come forward with a complaint fear retaliation, they will not exercise their rights. Schools would not only be restricted from threatening, coercing, or intimidating students, but they would be responsible for ensuring that other students were also not doing this to those exercising their Title IX rights.
6. Ensuring that students know the policies.
A school’s policy is only effective if students are aware and able to access the tools that are made available to them. The proposed regulations would require all schools would receive federal funding to clearly and effectively communicate non-discrimination policies to all students, employees, and any other participants in education programs and activities.
While the proposed changes address a myriad of gaps in the previous iteration, there is a significant hot-button issue that is not taken on directly. For many years now, there has been much discussion about transgender athletes and where they should be eligible to compete in sports that are consistent with their gender identity. The proposed regulatory changes do not directly address this issue. LGBTQ+ advocates have identified positive steps in the language used in the regulatory changes, particularly in the rules that state “adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity subjects a person to more than de minimis harm on the basis of sex.”
While perhaps not the explicitly defined rule that advocates were looking for, the language does represent a positive step and opens the door for future iterations.
The landmark Title IX legislation has certainly seen its fair share of changes over the years. This is not uncommon for broad-sweeping regulatory pieces that have a tremendous impact on American society. As these rules are rolled out and engaged with, gaps and inconsistencies are identified and they experience a lifetime of alterations. In short, there is always room for progress. Title IX is no exception to this and these recently proposed changes are yet another attempt to protect the rights of students and staff to the best of our society’s ability.