By Michael W. Lewis & Megan E. Johnson

December 11, 2023

In its latest regulatory agenda, the United States Department of Education (ED) announced that it will further delay the release of two long-awaited Title IX regulations. The regulations, “Nondiscrimination on the Basis of Sex and Disability in Programs or Activities Receiving Federal Financial Assistance,” and “Nondiscrimination on the Basis of Sex in Education Programs Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams,” are in the Final Rule Stage. After delays in May and October 2023, the ED plans to issue final rules for both by March 2024. The ED cites the controversial nature of the regulations, along with the high volume of public commentary, as the main reason for the delay in implementation since the ED must respond to all public feedback and comments it receives before publishing the rules.

From the initial stages, the ED planned to release both rules consecutively, with the broader rule including protections for LGBTQ+ individuals for the first time, and the second rule providing guidance for school inclusivity of transgender students on athletic teams aligning with their gender identities. The second rule, however, would permit institutions to exclude transgender players for safety or fairness considerations. When adopted, the rules will be the third paradigm shift in schools’ Title IX policies over three different administrations.

The ED states that these regulations are a way to promote the priorities of the Biden-Harris Administration, which include preventing and combating discrimination on the basis of gender identity and sexual orientation and guaranteeing an education environment free from such discrimination. The proposed amendments include, among others, revisions to grievance procedures for the prompt and equitable resolution of complaints of sex discrimination and sex-based harassment, action by a recipient to operate its education program or activity free from sex discrimination, preservation of rights, and retaliation.

The Appel, Yost & Zee Education Law Group will continue to monitor the ED’s announcements regarding the impending Title IX Regulations.

Should you have any questions regarding Title IX, please do not hesitate to contact any of the attorneys in the Appel, Yost & Zee Education Law Group.