An overhaul of Title IX regulations is expected this fall, according to a virtual town hall attended by WCRIS staff this week. The U.S. Department of Education released its proposed changes in April and is currently reviewing the hundreds of thousands of public comments, as required by law.
Here’s what the town hall experts and our colleagues at the Council for American Private Education (CAPE) have to say:
The changes, when finalized, would prohibit discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.
The anticipated regulations would permit students to use the bathroom and/or locker room consistent with their gender identity, but there is no guidance on how schools are supposed to determine gender identity.
Schools could only restrict a student’s participation on the opposite biological sex’s sports team only if there are concerns about fairness in competition and/or sports-related injury, while minimizing harm to that student. And only that student. It’s currently unclear if other students will receive protections.
“Blanket policies” limiting athletic team participation to biological sex would be prohibited. Further, schools couldn’t limit participation on elementary and middle school teams as well as “low-competition” teams, such as intramural or no-cut teams.
The proposed regulations also change an individual’s due process rights under Title IX, said the Wisconsin Institute for Law and Liberty (WILL) who hosted the town hall.
According WILL’s attorneys, private schools that are recipients of Federal Financial Assistance (FFA) would be subject to these new regulations. But a school controlled by a religious institution could be exempt from those parts of the policy that conflict with main tenants of its religion. It’s unclear how schools would have to defend this.
CAPE says recent examples of FFA are the Free and Reduced Lunch Program and other food programs operated by the U.S. Department of Agriculture. Therefore, private schools should be very cautious when signing up for federal grants or aid.
It’s also unclear how this could affect sports associations and play between public and private schools.
These changes are still just proposed. But they are said to be finalized in October with an effective date being assigned at that time. Lawsuits are expected with the hope that existing interpretations of Title IX would remain until a final ruling is issued. WCRIS will keep you updated.
Please contact WCRIS with questions or concerns. Watch the recording of the webinar here.
