On December 10, 2021, the U.S. Department of Education announced its intention to amend the Title IX regulations and issue notice of the proposed changes by April 2022. Although the DOE did not state explicitly how it plans to amend the regulations, the announcement did include several clues about what direction the Administration intends to take with the new regulations.
First, the announcement indicates that the Department plans to revise the “sexual harassment” regulations that were promulgated under the Trump administration in August of 2020. However, it is pretty clear that the Biden administration does not intend to scrap these new procedures entirely. We do NOT anticipate much changing in terms of the need for separate investigators and decisionmakers or in terms of changes to the structure of the investigations themselves. Instead, we are speculating that the Department will provide additional protections for complainants, or changes to the definitions of “sex harassment” to broaden out the type of conduct that would be covered by the 2020 regs.
In addition, the Department seems intent on adding regulations that explicitly state that LGBTQIA+ students have protections under Title IX based solely on their sexual orientation and/or gender identity. These regulations could also bring long-awaited clarity to complex issues related to the involvement of transgender students in interscholastic athletics and requests from transgender students to utilize the sex segregated facilities consistent with their gender identity.
Importantly, nothing in any of these recent announcements indicates that the Biden Administration simply intends to repeal the 2020 regulations. In other words, those changes (and their training requirements) are here to stay—likely with some updates, once the powers that be choose to . . . you know . . . actually share what the substance of the changes will be.
In the meantime, if you have any questions about Title IX, the current regulatory requirements, or the status of the law applicable to accommodation requests or discrimination claims of LGBTQ+ students, please don’t hesitate to call Karen, Steve, Bobby, Coady, Tyler, or Jordan at 402-804-8000, or e-mail us all at ksb@ksbschoollaw.com.