Department of Education Proposes Title IX Rule with Opportunity for Public Comment


Published July 22, 2022

The Federalist Society Blog

In line with the Biden administration’s equity and gender identity policy priorities, the Department of Education (ED) has proposed new regulations on Title IX of the Civil Rights Act of 1972, which prohibits sex discrimination in federally funded educational programs and activities.

On June 23, 2022, the 50th anniversary of Title IX, ED posted draft proposed regulations on its website, and on July 12, the 190-page notice of proposed rulemaking (NPRM) was officially published in the federal register. Public comments on the proposal are due September 12.

ED states that the purpose of the NPRM is to

better align the Title IX regulatory requirements with Title IX’s nondiscrimination mandate, and to clarify the scope and application of Title IX and the obligation of all [educational institutions that receive federal financial assistance from ED] to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination.

ED estimates that the total monetary cost savings to educational institutions of the proposed regulations over ten years would range from $9.8 million to $28.2 million.

Title IX and Religious Exemption

Title IX provides, ‘‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’’

Title IX does not apply to educational institutions that are controlled by a religious organization to the extent that application of Title IX would be inconsistent with the religious tenets of the organization. The NPRM does not propose any regulations related to the religious exemption.

Sex Discrimination

ED declines to define the term “sex” because “sex can encompass many traits and because it is not necessary for the regulations to define the term for all circumstances.” But “to clarify the scope of Title IX’s prohibition on discrimination on the basis of sex,” ED proposes that discrimination on the basis of sex be expanded to include (“at a minimum”) discrimination on the basis of:

  • sexual orientation,
  • gender identity,
  • sex stereotypes (i.e., “fixed or generalized expectations regarding a person’s aptitudes, behavior, self-presentation, or other attributes based on sex”)
  • sex characteristics (including “a person’s physiological sex characteristics and other inherently sex-based traits,” and “intersex traits”), and
  • pregnancy or related conditions (defined as: “(1) Pregnancy, childbirth, termination of pregnancy, or lactation; (2) Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or (3) Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or their related medical conditions”).

The NPRM relies heavily on Bostock v. Clayton County, the 2020 Supreme Court decision that held hiring or firing decisions based on homosexuality or transgender status violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. Notably the Supreme Court did not adopt “gender identity” as a protected category and premised its decision on the assumption that “sex” refers only to the “biological distinctions between male and female.”

The NPRM also repeatedly cites to a 2021 Notice of Interpretation issued by ED purportedly applying Bostock’s reasoning to Title IX (even though Bostock stated that its implications for other laws were questions for “future cases”) and stating ED would enforce Title IX to prohibit discrimination based on sexual orientation and gender identity. On July 15, a federal district court preliminarily enjoined the “guidance” document for not following the public notice and comment process required under the Administrative Procedure Act.

Gender Identity, Living Facilities, and Athletics

ED’s proposed regulations would clarify that “preventing any person from participating in an education program or activity consistent with their gender identity would subject them to more than de minimis harm on the basis of sex and therefore be prohibited, unless otherwise permitted by Title IX or the regulations.” An education program or activity includes sex-separate bathrooms, locker rooms, living facilities, and athletics. The NPRM acknowledges that Congress permits educational institutions to maintain “separate living facilities for the different sexes.”

Regarding girls’ and women’s sports, the NPRM recognizes “that exclusion from a particular male or female athletics team may cause some students more than de minimis harm, and yet that possibility is allowed under current [regulations].” Under current regulations, which the NPRM does not propose to change, educational institutions may “operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” ED states it will issue a separate NPRM to address “whether and how” ED should amend current regulations on sex-separate athletics and “the question of what criteria, if any, recipients should be permitted to use to establish students’ eligibility to participate on a particular male or female athletics team.”

The NPRM, however, does not explicitly state that under Title IX’s statute and regulations participation in single-sex sports may be based on biological sex (a definition the NPRM declines to adopt). Indeed, it is the Biden administration’s policy to support students’ ability to participate in sports based on their stated gender identity. Last year, the Department of Justice issued a statement of interest in a federal court case arguing that a state law that ensures only biological female athletes can participate in girls’ and women’s sports violates Title IX (and the Equal Protection Clause of the Fourteenth Amendment). This statement reveals the Biden administration’s legal position that Title IX and current regulations require participation in single-sex sports based on gender identity.

Abortion

The administration is looking for ways to push its pro-abortion agenda post-Dobbs, but the Title IX statute contains an explicit abortion neutrality provision. Specifically, nothing in Title IX “shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion.” While the NPRM does not specify any additional ways abortion would be protected under the regulations’ prohibition against discrimination based on “termination of pregnancy,” the proposed regulations would require educational institutions to make “reasonable modifications” to policies, practices, or procedures for students “because of pregnancy or related conditions.”

Harassment and Due Process

The NPRM also proposes an overhaul of the 2020 Rule that specified how educational institutions must address allegations of sexual harassment under Title IX’s sex discrimination prohibition.

ED proposes changing “sexual harassment” to “sex-based harassment,” which would cover harassment on any of the bases mentioned above. Under the NPRM, educational institutions would be required to prevent and address sex-based harassment. Many are concerned that under the proposed regulations harassment will be defined to include “offensive” speech (such as non-preferred pronouns) or unpopular opinions related to sex or gender in violation of the Free Speech Clause of the First Amendment.

The NPRM proposes other changes related to:

  • Title IX Coordinators,
  • grievance procedures and other necessary steps for complaints of sex discrimination,
  • supportive measures to restore or preserve a complainant’s or respondent’s access to the educational program or activity,
  • nondiscrimination notices,
  • recordkeeping,
  • training on Title IX obligations, and
  • retaliation.

For those interested in more specifics, the Defense of Freedom Institute published a summary and comparison of the 2020 Rule and the 2022 NPRM.

Opportunity for Public Comment

ED is accepting public comments on the NPRM until Monday, September 12, which can be submitted here. To learn more about public comments on agency rulemaking, see the Ethics and Public Policy Center’s one-page explainer.


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