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Title IX

2022 - Department of Education Releases Title IX Proposed Rule

Title IXOn June 23, the Department of Education released the highly anticipated Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM proposes to replace the Trump administration’s 2020 Title IX rule and establishes safeguards for transgender students by proposing a ban on “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.” The proposal will be open for public comment for 60 days following publication in the Federal Register.

In March 2021, President Biden issued an Executive Order (EO) titled, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” The EO directed the secretary of education to evaluate the Trump administration’s Title IX regulations and to “issue new guidance as needed on the implementation of the rule.”

Of significance, the NPRM proposes to repeal the Trump administration’s requirement for live hearings for Title IX investigations. It also proposes to change the definition of sexual harassment back to “unwelcome sex-based conduct” that creates a hostile environment sufficiently severe or pervasive that it denies or limits a person’s ability to participate in a school’s education program or activity.

CUPA-HR will be conducting a deeper analysis of the 700-page proposal in the days and weeks to come and will be partnering with other higher education associations to ensure the department receives meaningful feedback on its proposal.

Title IX

The Statute

 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.

20 U.S.C. §1681

Title IX was only about equity in sports; it is now a prohibition against sex-based discrimination in education. It addresses discrimination against women in programs such as STEM (science, technology, engineering, and math), pregnant, and parenting students. It also addresses sexual harassment, gender-based discrimination, and sexual violence. The definition of sexual violence includes attempted or completed rape or sexual assault, as well as sexual harassment, stalking, voyeurism, exhibitionism, verbal or physical sexuality-based threats or abuse, and intimate partner violence.

Title IX Process Flowchart - pdf

You are protected under Title IX even if you do not experience sex discrimination directly. Schools must take immediate steps to address any sex discrimination, sexual harassment, or sexual violence on campus to prevent it from affecting students further. If a school knows or reasonably should know about discrimination, harassment, or violence that is creating a “hostile environment” for any student, it must act to eliminate it, remedy the harm caused, and prevent its recurrence. Schools may not discourage survivors from continuing their education, such as telling them to “take time off” or forcing them to quit a team, club, or class. You have the right to remain on campus and have every educational program and opportunity available to you.

At the time a report is made, you are not required to decide on any particular course of action. Choosing how to move forward after reporting the incident is a personal decision that may change over time.