The U.S. Department of Education released the final version of its updated Title IX regulations which govern how K-12 schools and colleges that receive federal money respond to complaints of sexual harassment and violence.
In June 2022, the Biden administration released proposed changes to the regulations. The draft regulations were open to public comment for 60 days, but in May 2023, the administration announced it would delay the release of the updated rules as it sifted through more than 240,000 comments. The highly anticipated new rules are now scheduled to go into effect Aug. 1.
The department released a resource for schools as they work to draft policies that align with the new rules. The Association of Title IX Administrators, which certifies Title IX coordinators and other administrators, announced Friday it is offering a new certification course for both K-12 schools and colleges and universities to align with the updated ruling. The School Superintendents Association also released compliance resources for its members.
Some main takeaways from the updated rule are:
- Who is required to report under Title IX: While previous iterations limited required reporting to officials with authority to institute corrective measures, these regulations are much broader and require reporting from roles with responsibility for administrative leadership, teaching, or advising.
- Grievance procedures: While the previous regulations required a live hearing, the new regulations allow institutions to use other processes, with specific restrictions. For example, other processes must have a mechanism for proposing and asking relevant and not otherwise impermissible questions and follow-up questions of parties and witnesses.
- The new regulations also address how Title IX administrators can investigate complaints of sexual assault if law enforcement is also investigating. Education department officials say the final rule emphasizes the need for a “prompt” process even while a criminal justice process is pending.
- Wider definition of sexual harassment: Schools must now address any unwelcome sex-based conduct that is so “severe and pervasive” that it limits a student’s equal access to education. Under the Trump administration, conduct had to be “severe, pervasive and objectively offensive,” a higher bar that moved some types of misconduct outside of the purview of Title IX.
But what do the new Title IX regulations say about sports and how will they potentially impact student-athletes?
Athletes Can Continue Playing Amid Sexual Misconduct Complaints
The new federal regulations will prevent colleges and coaches from suspending athletes accused of sexual misconduct while school officials investigate complaints against them, according to ESPN. The due process provision was first adopted by the Trump administration in 2020 but was criticized by survivors and their supporters for intimidating those who report alleged misconduct and putting other students at risk.
When asked about the due process provision on Thursday, a senior administration official told ESPN that to remove a student from an athletic team or any activity before a finding of responsibility is an unfair burden.
Richard Olshak, the director of Title IX and student conduct compliance at Texas A&M and a member of the advisory board of the National Association of Title IX Administrators, wrote in an email Friday to ESPN that Title IX practitioners and athletic departments see both positive and negative implications of the new rule.
“From the lens of a Title IX Coordinator, we don’t want athletics taking actions that impugn or undermine the perception of our process and can be perceived as punishing or retaliatory,” Olshak wrote. “This issue now becomes more complicated with the rise of NIL [name, image, and likeness] and a property interest that seems to be in some conflict with the long-held idea that participation in athletics is a privilege as opposed to a right.”
Overall, Olshak added, the new regulations “have hit a better landing spot” than those from the Obama administration. Emma Grasso Levine, the senior manager of Title IX policy and programs at Know Your IX, agrees.
“After years of pressure from students and survivors of sexual violence, the Biden Administration’s Title IX update will make schools safer and more accessible for young people, many of whom experienced irreparable harm while they fought for protection and support,” she wrote in a statement.
Transgender Athlete Guidance Absent from New Title IX Regulations
Missing from the new Title IX regulations are provisions regarding the eligibility of transgender athletes, which had been included in an earlier Education Department proposal. Officials separated that issue from the broader Title IX regulations and said those regulations are still going through the rulemaking process after the federal agency received more than 150,000 public comments. The department did not provide an estimated date on when it would be finalized.
The administration originally planned to include a new policy forbidding schools from enacting outright bans on transgender athletes. If finalized as proposed, those rules would challenge 24 Republican-led state laws banning transgender athletes from joining athletic teams that align with their gender identity, according to the Movement Advancement Project, an LGBTQ+ advocacy group.
The new regulations do, however, put more protections in place for LGBTQ+ students. The new rules clarify that Title IX forbids discrimination based on sexual orientation, gender identity, or sex characteristics, AP News reports.
“These regulations make crystal clear that everyone can access schools that are safe, welcoming, and respect their rights,” U.S. Secretary of Education Miguel Cardona said during a call with reporters on Thursday. “It clarifies that Title IX’s prohibition of sex discrimination includes all forms of sex discrimination.”
Rep. Virginia Foxx, a Republican from North Carolina and chair of the House Education and the Workforce Committee, said the new regulations threaten decades of advancement for women and girls.
“This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender,” she wrote in a statement. “The rule also undermines existing due process rights, placing students and institutions in legal jeopardy and again undermining the protections Title IX is intended to provide.”
Melanie Willingham-Jaggers, executive director of GLSEN, an advocacy group for LGBTQ+ youth in K-12 schools, told EdWeek that the finalized rules are a step forward for LGBTQ+ students.
“We must reject the discriminatory policies—many in violation of Title IX—that too many states have rushed to pass in an unseemly race to bully and target marginalized students,” Willingham-Jaggers said in a statement. “It is up to all of us to continue to rise up for LGBTQ+ youth by fighting to ensure robust enforcement of Title IX and the adoption of inclusive policies in school districts across the country.”
