Title IX: Big Changes Under the Biden Administration

Title IX and Its Application

Title IX is a comprehensive Federal law that has removed many barriers that once prevented people, on the basis of sex, from participating in the educational opportunities and careers of their choosing. Title IX was passed on June 23, 1972, and states:

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 regulations apply to State and local educational institutions that receive federal funding, including public schools, charter schools, for-profit schools, libraries, and museums. Title IX impacts those institutions by imposing obligations in the following areas: Recruitment; Admissions; Counseling; Financial Assistance; Athletics; Sex-Based Harassment; Treatment of Pregnant/Parenting Students; Discipline; Single-Sex Education; and Employment.

Title IX regulations often get changed with each new presidential administration. On June 23, 2022, the U.S. Department of Education released its proposed amendments to the Department’s regulations implementing Title IX of the Education Amendments of 1972. The amendments reflect the Department’s continued commitment to ensuring that federally funded education programs and activities are free from all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy and related conditions, sexual orientation, and gender identity.

Overview of Recent Changes to Title IX

Generally, the changes proposed by the current administration will clarify that, unless otherwise provided by Title IX or its regulations, a recipient must not carry out any otherwise proper different treatments or separations on the basis of sex in a way that would cause more than minimal harm. This includes 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.

The most significant changes to Title IX are as follows:

  1. Live Title IX hearings will no longer be required for post-secondary institutions
  2. Sex-based harassment will be redefined to include harassment based on sex stereotypes, sex characteristics, pregnancy, sexual orientation, and gender identity
  3. There will be new definitions of “retaliation” and “peer retaliation”
  4. There will be a more relaxed standard and a broadened scope for what conduct may contribute to a sex-based hostile environment
  5. New responsibilities applicable to Title IX Coordinators in responding to complaints will be implemented

Greater Clarity Regarding Sex-Based Harassment Remedies

The amendments to Title IX have redefined and expanded the definition of sex-based harassment to include sexual harassment and clarify a recipient’s obligations to address sex discrimination and sex-based harassment. Essentially, the new regulations promote accountability and fulfill Title IX’s nondiscrimination mandate since it now requires schools to act promptly in response to any information or complaint about sex discrimination.

The expansion means there is greater clarity on how a recipient must take action to end sex discrimination in its education program or activity to prevent its recurrence and remedy its effects. In addition, a recipient’s obligations related to the grievance procedures for sex discrimination will become more clear and outlined.

This expansion also helps protect LGBTQIA+ and other students and ensures access to an education that is free from discrimination.

Lastly, one of the amendments now recognizes off-campus conduct contributing to a sex-based hostile environment, such as behavior occurring in a building owned or run by a student organization.

More Protections for Pregnant Individuals

The new regulations will provide more protection to pregnant individuals as the definition of pregnancy is expanded  to include pregnancy-related conditions and is now defined as follows: Pregnancy, childbirth, termination of pregnancy, or lactation; Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or their related medical conditions.

The regulations will now prohibit discrimination against pregnant students as students or as applicants for admission or employment based on a current, potential, or past pregnancy or pregnancy-related condition.

In addition, a recipient’s obligations to a pregnant individual or individual experiencing a related condition will now be more transparent. Pregnant students will also be provided with instructions on modifications upon knowledge of their pregnancy or related condition. A modification example includes the recipient making a lactation space available for a pregnant student or student experiencing the related lactation condition.

Broader Protections for Parenting Individuals

The regulations provide greater protection from discrimination against students, employees, or admission applicants who parent someone. The regulations expanded the definition of parental status. The new definition for parental status now protects against discrimination for individuals with caregiving responsibilities for others based on the following: Biological or adoptive parent; Guardian; Foster Parent; Stepparent; Legal Custodian; and In Loco Parentis (someone who has put themself in the situation of a lawful parent by assuming parental obligations without going through the formalities of a legal adoption or who is actively seeking legal custody, adoption, visitation, or guardianship.)

Additional Protections from Retaliation

The regulations in Title IX define retaliation as intimidation, threats, coercion, or discrimination against any person by the recipient or by a specific individual affiliated with the recipient. The retaliation includes a student, an employee, or someone who provides aid, benefit, or service on behalf of the recipient. Under the current administration, the regulations have expanded the meaning of retaliation to include peer retaliation, meaning retaliation by and against students. This was done in the hopes of ensuring a Federal fund recipient is obligated to prohibit and address retaliation, and once a recipient receives information about possible retaliation, of initiating grievance procedures.

Do the Amendments to Title IX Affect Your Child?

We know it can be difficult for parents at the time their child is accused of wrongdoing at school. The process can be lengthy and stressful. This is why it is so important to contact a California Title IX lawyer to assist you during the process. You need someone who understands the law and how it could impact your child’s future. We’ve helped many parents and children with their Title IX issues and we can help you too. Contact our law firm today to request a consultation.