Title IX is constantly evolving. In May 2020, the United States Department of Education’s Office for Civil Rights (OCR) released regulations updating the Title IX of the Education Amendments of 1972 (“Title IX”). The 2020 regulations included some stringent updates including requirements to provide a supportive measure to both parties, advanced notice of interviews, and a "decision-maker" to be separate from an "investigator".
In June of 2022, the U.S. Department of Education OCR again released proposed changes to Title IX regulations for public comment. The proposed regulations update definitions, notice requirements, and roles for handling sexual harassment, assault, and sex-based discrimination in K-12 schools as well as colleges, and universities. Schools across the United States continue to prepare for new Title IX regulations that now have an anticipated date of October 2023 (previously set for May 2023). The change in anticipated date is due to the fact that the department received more than 240,000 public comments on the proposed rule—nearly twice as many comments as the Department received during its last rule-making on Title IX in 2020. The Department is also updating its Spring Unified Agenda to reflect an anticipated date of October 2023 for its proposed Athletics regulation, which received over 150,000 comments during its recent public comment period from April 12 – May 15, 2023. Any Title IX changes will impact school districts including updates to the requirements for how your school prevents, investigates, and responds to sexual harassment and misconduct concerns and complaints.
The new Title IX developments are set to bring about significant changes in the way sexual harassment and misconduct cases are handled in educational institutions. As a result, it is essential for individuals involved in sexual harassment and misconduct cases, such as educators, victims, discrimination attorneys, and sexual assault lawyers, to be aware of these changes.
Sexual Harassment Updates
The definition of sexual harassment has been proposed to be broadened under the draft regulations. The current regulations (2020) define sexual harassment as unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity. The Department proposes that the definition cover all forms of sex-based harassment, as opposed to only sexual harassment. This change intends to expand the scope of protections for individuals who might have been left out of the definition of sexual harassment before. Additionally, the new regulations define what constitutes sexual contact and aggravated sexual assault more explicitly, making it easier for victims to report such sex crimes. The new regulations also require schools to provide more comprehensive education programs or activities related to preventing sexual misconduct. The goal of releasing the new regulations is to help create a safer environment for students, faculty, and staff alike.
LGBTQI+ Protections
Title IX is a federal law that prohibits discrimination based on sex in any education programs or activities that receive federal funding. However, for a long time, sexual orientation and gender identity were not explicitly included in the protections of Title IX. This left many LGBTQI+ students vulnerable to discrimination and harassment. The new proposed amendments include reinforcement of protections for LGBTQI+ students, providing full protection from sex-based harassment, and requiring schools to take prompt and effective action to end any sex discrimination in their education programs or activities. The proposed new regulations explicitly prohibit discrimination on the basis of sexual orientation and gender identity, which provides protections for individuals who may have previously been excluded or marginalized. Additionally, institutions will be required to provide supportive measures to LGBTQI+ students and employees who experience harassment or discrimination.
Mandatory Reporting
The circumstances for mandatory reporting have also been expanded under the proposed regulations. Institutions would now be required to report all incidents of sexual harassment or assault, even if the incident occurred off-campus or outside of an institution-sponsored event.
Investigations
There have also been some proposed changes to the investigative process. The proposed regulations would clarify and confirm protection from retaliation and require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decision-makers to evaluate the evidence. The requirement for live hearings and cross-examination is anticipated to be eliminated, which may alleviate some concerns regarding the re-traumatization of survivors. Current regulations require a separate investigator from a decision-maker. Under the proposed new regulations, a single individual would now be allowed to act as both the investigator and decision-maker in a Title IX grievance process, which may streamline the process and reduce delays.
Pregnant Students and Employees
Another proposed change is the increased protection for pregnant and lactating students and employees. Institutions are required to provide reasonable accommodations for these individuals, such as private lactation rooms, and are prohibited from discriminating against them on the basis of pregnancy or related conditions.
Next Steps
Discrimination cases based on sexual orientation or gender identity have been on the rise in recent years, highlighting the need for stronger protections under federal law. The proposed Title IX regulations will bring significant changes to how institutions handle sexual harassment and assault claims, with particular emphasis on strengthening protections for marginalized individuals, expanding the definition of sexual harassment, and altering the investigative process. The proposed updates to Title IX regulations have sparked significant debate and discussion among various stakeholders, including educators, law firms, sex crimes and discrimination lawyers, and advocates for sexual orientation and gender identity rights. It is important for students, faculty, and staff to familiarize themselves with these changes and to understand their rights and options under the new regulations.
Here are the five next steps to help with implementation once the proposed new regulations are released:
1. Review and revise your Title IX Policy to be compliant with Department directives. The definition of sexual harassment will need to be updated. 2. Review and revise your Grievance Process. 3. Review and revise the Investigation Process. It is anticipated that districts will need to remove live hearings and cross-examination requirements and remove the requirement for a separate decision-maker. 4. Provide training for Designated Leaders. Update coordinators, investigators, decision-makers, and appeals officers about the changes and update any forms and procedures. Training should cover the new definitions, investigation requirements, and grievance process. 5. Training For ALL Staff Members. School districts should provide training to all staff to make sure they understand the new definitions and grievance process.
Staying Up to Date on Title IX
At McGrath Training Solutions, we provide comprehensive training in all areas related to Title IX compliance. Our offerings include training in effective communication for teachers and administrators, investigation and documentation of complaints, student awareness training, and all aspects of Title IX compliance.
We understand the importance of being prepared for any potential extension of Title IX regulations to private and public schools, and we are committed to providing top-notch training to ensure that your school leadership and staff are fully prepared. As regulations continue to evolve and change, we will keep your school up-to-date with the latest developments and train your team on any necessary adjustments to your policies and procedures.
By working with McGrath Training Solutions, you can be confident that your school is fully prepared to handle any Title IX compliance issues that may arise, and that your staff is equipped with the necessary knowledge and skills to support a safe and inclusive learning environment for all students. Get in touch or book training with us now.
