Proposed Changes to Title IX Law in 2022

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex at federally funded educational institutions and in the programs and activities of these institutions. In 2020, the Trump administration changed policies and guidance related to Title IX. In 2021, President Joe Biden issued two executive orders that included a call for the US Department of Education to review the Title IX regulations then in effect and issue updated guidance. The proposed changes to Title IX have been submitted by the Department of Education’s Office of Civil Rights (OCR) for review by the Office of Information and Regulatory Affairs (OIRA) and the Department of Justice (DOJ).

After a period of public comment, some form of the proposed changes to Title IX will likely become effective. When that happens, or potentially even in advance, primary and secondary schools, universities, and other federally-funded educational entities will need to review and revise their Title IX policies and procedures accordingly. Establishing and administering these new policies and procedures will require significant effort on the part of the institutions affected. The Title IX attorneys at Keffer Hirschauer LLP have deep knowledge of and experience in Title IX law and can assist schools and other entities as they navigate this uneven and inconsistent terrain.

Individuals accused of violations should also be aware of updated Title IX news as it happens because policy amendments have the potential to significantly impact Title IX defense. If you are facing Title IX violation allegations in Indiana, you need Title IX attorneys who understand the systems in place and keep up intently with changes to Title IX laws and processes so they can apply that knowledge to your defense.

What Are the Proposed Changes to Title IX?

After two executive orders were issued by President Biden in 2021, the Office of Civil Rights submitted a draft of its proposed changes to Title IX regulations and guidance to OIRA in February 2022, followed by a Notice of Proposed Rulemaking (NPRM) in March of 2022. While the proposed changes have not been made available to the public for review, the content of the executive orders and statements from the OCR offers insight into the areas of Title IX law and governance that are expected to be impacted.

Title IX rule changes in 2022 are likely to include additional or revised guidance and policy related to protections for sexual orientation and gender identity. Definitions included in Title IX law will probably also be amended, and many also expect this to result in the need for policy and procedural changes by schools and other institutions that are governed by Title IX.

Executive Orders Prompting Title IX Rule Changes in 2022

In January 2021, President Biden signed the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The order states that children should have an environment where they may be educated without fear that access to participate in school sports and use school facilities, like restrooms and locker rooms, will be refused due to their sexual orientation or gender identity. The order further notes that adults are entitled to the pursuit of employment, housing, and health care without the worry of or exposure to discrimination that is based on sexual orientation or gender identity, including dressing in a manner that is not consistent with sex-based expectations. These protections should be included in the provisions of Title IX law, according to the February order. President Biden further ordered that agencies with governance over areas related to these matters should review existing regulations and guidance to comply with the expectations set forth.

The January executive order was followed by another in March 2021: the Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. This order states that protection from discrimination that is related to sexual orientation or gender identity is codified in Title IX law, and orders the US Secretary of Education to review all regulations, policies, and guidance under the law to ensure consistency with these protections. Executive Order 14021 specifically references a review of the guidance issued regarding changes to Title IX regulations in 2020 under the Trump administration. Additional enforcement actions may be necessary, according to the order, and the order specifically advised the Department of Education to address high rates of discrimination against LGBTQ+ individuals and revise all applicable policies to ensure fair and equitable treatment for all.

Proposed Changes to Title IX: A Statement from the OCR

In October 2021, OCR published a blog titled “Our Commitment to Education Environments Free from Sex-Based Harassment, Including Sexual Violence.” The blog discusses the need to prevent sexual violence, which it says may be detrimental to a student’s education and general path. The blog places the impetus on schools to take action to prevent harassment and discrimination in compliance with the law. All forms of sexual discrimination should be included under this umbrella, according to the post, which also references President Biden’s March executive order. The October blog also announced the review by OCR of proposed changes to Title IX and a forthcoming NPRM detailing the Title IX changes at hand.

OCR Issues an Update on the Proposed Changes to Title IX

In February 2022, according to another blog published by OCR, a draft of proposed amendments to Title IX was submitted to OIRA for review to advance the priorities set forth by President Biden’s 2021 executive orders. The draft NPRM, which is under review by OIRA and the Department of Justice (DOJ), may address these Title IX rules and others, according to the OCR’s February 18, 2022 blog:

• 34 CFR 106.8, related to Title IX coordinator designations, policy, and grievance procedure adoption
• 34 CFR 106.30, which contains definitions relevant to the contents of the law
• 34 CFR 106.44, regarding a complaint recipient’s response to sexual harassment
• 34 CFR 106.45, governing the process for filing of and response to a sexual harassment grievance and formal complaint

Once the review of the NPRM submitted by the Office of Civil Rights is complete, it is anticipated that the proposed Title IX changes will be published in the Federal Register for a period of public comment.

What to Do While Awaiting Title IX Rule Changes in 2022

As they wait to learn what will result from the proposed changes to Title IX, educational institutions should continue to administer their Title IX programs under the current laws and the guidance provided in 2020. However, awareness of and preparation for the coming changes is wise. Administrators should also note that the prohibition of reliance on statements not subject to cross-examination included in 34 CFR § 106.45(b)(6)(i) is no longer being enforced after the rule was vacated by the Federal District Court for the First Circuit in 2021.

Additional compliance guidance is available in a question and answer document provided by the Department of Education in July 2021.

Individuals accused of Title IX violations should always be vigilant about protecting their own rights and interests, but they should be even more so as we await updated Title IX news and learn more about the changes that are pending. One of the best ways for an accused violator in Indiana to protect his or her interests is by consulting with and being represented by Indiana Title IX attorneys with deep, up-to-date knowledge of the topic and the ways it currently impacts and in the future may impact Title IX defense.

Title IX Attorneys to Interpret Title IX News and Implement Title IX Changes

Responding appropriately to Title IX changes as they happen is critical for schools and educational institutions that wish to protect themselves, their employees, and their students. Compliance is difficult in an environment with ever-changing rules and procedural requirements.

Meanwhile, individuals accused of Title IX violations need to be sure their rights and future are protected. Defending yourself against life-altering allegations while regulations are changing is like trying to shoot at a moving target. If you find yourself in this situation, you need assistance from someone who can anticipate how Title IX changes in 2022 may impact your case and design your defense strategy accordingly.

The Indiana Title IX attorneys at Keffer Hirschauer can help institutions and individuals in need of help navigating Title IX matters in this ever-changing landscape. When Title IX allegations could potentially result in criminal charges, you can rest easy knowing that we are skilled, aggressive criminal defense lawyers who will work with dedication to defend you against those charges as well.

Our ATIXA-certified attorneys are trained in Title IX investigation and administration by a professional association that specializes in this area. Adept in all areas of criminal defense, accomplished in litigation and negotiation, and steeped in Title IX knowledge, the Title IX attorneys at Keffer Hirschauer LLP will apply our extensive skill set to secure the best outcome for you.

For assistance preparing for the proposed changes to Title IX law in Indiana or to mount a first-rate Title IX defense strategy, schedule an appointment with an attorney at Keffer Hirschauer LLP by calling (317) 857-0160 or complete this online contact form and someone will reach out to you.