Legal Alert

DOE to Hold Public Hearings on Trump-Era Title IX Rules & Protections for LGBTQ+ Individuals in Schools

By Dee Spagnuolo, Elizabeth Wingfield, Nikki Hatza, Fanta Freeman, Diana Joskowicz, and Maraya Pratt
June 2, 2021

Summary

The Department of Education (DOE) will hold five days of virtual public hearings on Title IX enforcement starting on June 7. This comes as part of the DOE’s comprehensive review of its Title IX regulations in accordance with the Biden Administration’s March 8 Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, which we previously covered here.

The Upshot

  • Educational institutions and other stakeholders should consider participating in the upcoming hearings.
  • The upcoming hearings signal that the DOE intends to make swift changes in its Title IX enforcement, and institutions should keep an eye out for DOE guidance and regulatory changes.

The Bottom Line

The upcoming public hearings will focus on 1) the Trump-era amendments to Title IX regulations regarding sexual harassment and 2) discrimination against individuals on the basis of sexual orientation and gender identity.

The Civil Rights Division of the United States Department of Justice (DOJ) previously notified Federal Agency Civil Rights Directors and General Counsels that anti-LGBTQ+ discrimination falls within the scope of Title IX’s protections. Federally-funded schools, colleges and universities should review their own anti-discrimination policies and programs and update them accordingly if they have not already done so. Educational institutions should consider participating in the upcoming public hearings and also be on the lookout for announcements posted on the News Room section of the DOE website for future notices of proposed regulatory changes.

Attorneys in Ballard Spahr’s Education Industry Group advise schools and universities on a wide range of education law issues, including Title IX compliance.

Starting on June 7 and ending on June 11, the Department of Education (DOE) will hold five days of virtual public hearings on Title IX regulations generally, with a particular focus on 1) regulations related to sexual harassment, including the Trump-era amendments to Title IX regulations (the Trump-era Rules) and 2) discrimination against individuals on the basis of sexual orientation or gender identity in educational environments. These hearings come after President Biden’s March 8 Executive Order (the Order) requiring the DOE to review its Title IX regulations.

The Order (which we previously summarized) required the DOE, through Secretary of Education Miguel Cardona, in consultation with the Attorney General, to review its existing regulations and other guidance that may be inconsistent with the Biden Administration’s stated policy that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.” The Order mandated specific review of the Trump-era Rules entitled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 85 Fed. Reg. 30026 (May 19, 2020). It directs Secretary Cardona to issue new guidance as needed to implement the Order “as soon as practicable,” and to suspend, revise, rescind — or publish for notice and comment any proposed rules which suspend, revise, or rescind — agency actions that are inconsistent with the stated purpose of the Order. The Trump-era Rules (which we covered in detail) narrowed the behavior that constitutes harassment under Title IX, afforded more due process rights to those accused of harassment, and decreased the likelihood that educational institutions would be held responsible for sexual harassment.

After the Order, the Civil Rights Division of the United States Department of Justice (DOJ) issued a three-page memorandum (which we previously described) confirming that Title IX’s prohibition on sex discrimination includes discrimination against individuals on the basis of sexual orientation or gender identity in educational settings.

The DOE’s public hearings provide an opportunity for the DOE to hear from stakeholders as it reviews its regulations and considers any necessary changes in line with the Order. While the DOE considers changes to Title IX regulations, the Trump-era Rules remain in effect.

Individuals or institutions may comment live during the public hearings by registering here, or submit written comments via email. Written comments must be submitted to T9PublicHearing@ed.gov by 5 p.m. EDT. on June 11. Directions for submitting comments can be found on the announcement of public hearing. Ballard Spahr’s Education Industry Group is available to draft public comments on behalf of schools and universities interested in sharing their perspectives on Title IX.

We will monitor the DOE’s evaluation of its Title IX regulations and will provide updates as the process continues. 


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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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