Colleges, universities, and public K-12 schools have been waiting with bated breath for the U.S. Department of Education to finalize its new Title IX regulations, which dictate how sex discrimination and harassment are handled on campus and in athletics. The department announced on May 26 that this wait will stretch into the middle of the upcoming school year, potentially increasing compliance challenges.
The department released its proposed Title IX rule in June 2022. It would require educational institutions to extend robust Title IX grievance procedures to all complaints of sex discrimination (not just sexual harassment), permit but no longer require live hearings, and make clear that Title IX prohibits discrimination on the basis of pregnancy, sexual orientation, gender identity, and sex characteristics.
The department announced its proposed athletics rule this past April. It would prevent schools from categorically banning transgender students from playing on sports teams aligning with their gender identities. The proposal would under some circumstances, however, permit sex-related criteria to limit participation of transgender students, such as “ensuring fairness in competition or preventing sports-related injury,” according to a department fact sheet.
The department received hundreds of thousands of public comments on both regulations. “Carefully considering and reviewing these comments takes time, and is essential to ensuring the final rule is enduring,” the department said in a blog post announcing that adoption of the final regulations will not happen until October 2023 (at the earliest), well after the academic year has started.
Typically, there is some lag time between adoption of a rule and its effective date. For instance, the current Title IX regulations were adopted in May 2020 with an effective date of August 1, 2020. An anticipated adoption in October 2023 for the new Title IX regulations raises some inevitable and thorny questions: Will educational institutions have to pivot in the middle of an academic year? How will the adoption of the athletics rule impact sports seasons already in progress? Just how much retooling will educational institutions have to do?
For now, school leaders should consider preparing to change Title IX processes to better align with the new proposed Title IX regulations. This means having a good understanding of current requirements so when changes do come, institutions are prepared for a seamless transition. The steps below will aid educational institutions in effectively adapting to the evolving Title IX landscape.
- Review and update your internal procedures, forms, and training programs.
- Expand investigative teams to accommodate an anticipated increase in investigations.
- Understand your current trend of investigations and the implications of an increase on your process.
- Conduct an additional educational campaign to ensure all stakeholders understand the expanded scope of Title IX and new implementation procedures.
- Be prepared to provide additional talking points and training materials for use following the changes in October or later.
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