Title IX is the United States federal civil rights law that prohibits sex discrimination (including pregnancy, sexual orientation, and gender identity) in any education program or activity receiving federal financial assistance. In June 2022, the Department of Education released proposed revisions to the Title IX regulations that would protect young girls in schools and undo some of the damage done under the previous administration. Although these provisions are a step in the right direction, the rule needs to go further.
Girls Inc. submitted a joint comment with its partner Stop Sexual Assault in Schools (SSAIS) and signed onto several partner organizations’ comments, endorsing the Department’s effort to restore Title IX’s purpose but emphasizing the need for them to be more expansive and inclusive in protecting all students against sex-discrimination in education.
Positive changes we recommended the Department preserve in their final Title IX rules:
- Revised definition of sex-based harassment
- Return to the Department’s longstanding standard that defines “hostile environment harassment” more broadly as “severe or pervasive” sex-based harassment that “denies or limits” a person’s ability to participate in or benefit from an education program or activity.
- Inclusion of LGBTQI+ students
- Defines sex discrimination to include discrimination based on sex stereotypes, sex characteristics (including intersex traits), sexual orientation, and gender identity.
- Inclusion off-campus harassment
- Require schools to respond to all sex-based harassment and expressly state that Title IX covers off-campus school-sponsored activities in the regulations.
- Protection for former students
- Require schools to address complaints by all individuals, not just current students, and prevent harassment or discrimination from continuing or recurring if the respondent has left the school.
- Clarified preemption of state laws
- Remove provisions that force school districts to navigate competing definitions of sexual harassment from state law and existing district policies that were based on prior Title IX guidance. Would allow schools to follow state or local laws that provide greater protections against sex discrimination.
- Requirement for trauma-Informed training
- Require all school employees to be trained on trauma-informed practices as the trauma can have a significant impact on their ability to learn.
- Requirement for free supportive measures
- Require schools to offer supportive measures at no cost to individuals who report sex-based harassment or discrimination, regardless status of investigation, resolution, or dismissal.
- Pregnancy or related conditions
- Require schools to make reasonable accommodations for a student’s pregnancy or related condition (e.g., childbirth, termination of pregnancy, lactation). Require schools to allow these students to take a leave of absence for as long as medically necessary and to take lactation breaks in a clean, private, non-bathroom space.
- Strengthened standard of care
- Require schools to take “prompt and effective action” to end sex-based harassment (or other sex discrimination), prevent it from recurring, and remedy its effects on all people harmed.
- Questioning parties and witnesses
- Require PK-12 schools to allow all parties to present their witnesses and evidence and, if credibility is at issue, to use a process that enables the decisionmaker to assess the credibility of the parties and witnesses.
Places we’d like to see the Department clarify and/or expand on in their final Title IX rules:
- Require confidential employees
- Require schools to designate one or more confidential employees, who are not required to report possible sex discrimination to the Title IX Coordinator and indicate these employees’ status as confidential.
- Strengthen protections for LGBTQI+ students
- Establishing anti-LGBTQI+ discrimination, such as misgendering students, refusing to use their lived name, and non-consensually disclosing their LGBTQI+ identity to others (or “outing” them) as harassment.
- Broaden protections for pregnant and parenting students
- Protect student privacy to ensure that school records regarding harassment based on pregnancy or related conditions are not used to prosecute complainants in states where abortion and other reproductive healthcare are criminalized.
- We urge the Department to develop and disseminate updated guidance specifically for K-12 schools regarding the Title IX rights of pregnant and parenting students, modeled after the OCR publication Know Your Rights: Pregnant or Parenting? Title IX Protects You from Discrimination at School.
- Clarify requirements for supportive measures
- Require schools to provide supportive measures if it is “reasonably available,” and expand the list of examples of supportive measures to note the availability of academic supportive measures. If a school knows that current supportive measures are not helping a student, require the school to offer other supportive measures.
- Ensure victim-appropriate informal resolutions
- Require all parties to give “written consent” to an informal resolution. Clarify that schools may not use mediation or other conflict resolution processes in which the victim and harasser share blame.
- Strengthen the standard of proof
- Require schools to use the preponderance of the evidence standard in all Title IX investigations, which recognizes that complainants and respondents have equal stakes in the outcome of an investigation.
- Ensure consistency of appeal rights
- Ensure appeal rights are the same in K-12 schools as they would be at institutions of higher education
- Prohibit retaliation
- Prohibit retaliation against reporting sex-based harassment or discrimination, or for participation in an investigation or informal resolution of such incidents. Additionally, prohibit schools from disciplining a student for doing something that the school knows or should know “results from” the sex discrimination they faced (e.g., missing school, expressing trauma).
We also urged the Department to issue rules on these other Title IX topics as quickly as possible:
- LGBTQI+ students and athletics
- Issue rules regarding sex equity in athletics, including transgender students’ participation in school sports, as soon as possible so that student athletes are also protected from discrimination.
- Religious exemption
- Rescind the rule inappropriately expanding eligibility for religious exemptions and require schools to notify the Department of any religious exemption claims and to publicize any exemptions in their required nondiscrimination notices.
The Department of Education’s proposed Title IX rule received more than 240,000 comments. Reviewing this volume of content comments will take months. The Department has not given any indication of when it may finalize the rule, but it is unlikely the final rule will be published before mid-2023.
Girls Inc. takes a holistic approach to combat sexual violence, harassment and bullying by raising awareness about girls’ rights and schools’ obligations and advocating for policies that promote safe learning environments and address the root causes of sexual violence. To learn more about our Title IX recommendations to the Department of Education, you can click here to read our full comment.