Title IX NPRM

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Title IX and Athletics Notice of Proposed Rulemaking Overview Federal Registration Number (FRN) 2023-07601

On April 6, 2023 The Office of Civil Rights Department of Education released a Notice of Proposed Rulemaking (NPRM) that addresses the eligibility to participate in male or female specific athletic programs based on a student's gender identity. The NPRM was published in the Federal Register April 13. There will be a 30-day public comment period, which ends May 15, 2023.

The NPRM contains some examples of case law and OCR settlements that illustrate when sex-based criteria is permissible under Title IX and when it is not.

The Office of Higher Education does not interpret the changes or make inferences of the effects of the proposed changes.

This provision is listed under §106.41(b) of Title IX of the amendments act. To consider sex-based criteria that denies or limits a student's participation in a male or female athletic team consistent with their gender identity, an institution must "adopt or apply" an analysis for each sport in the following areas

Level of competition
Grade or education level
Safety/prevention of injury
Whether the sport is a contact sport

The analysis must "substantially relate" the criteria to the "achievement of an important educational objective," and minimize the harm of students who are limited or denied the opportunity to participate.

Total bans of participation on the basis of gender identity appear to be a violation of Title IX, especially if an institution does not complete an analysis based on the criteria listed above.

To Make a Comment

Go to Regulations.gov

Search by entering the FRN 2023-07601
Click on "Comment" under the title of the proposed rule.
Comments will be received by OCR until May 15, 2023.
For details on how to submit an effective comment, please review the section entitled 'Resources for the Rulemaking Process and Submitting a Comment.'

2022 Title IX Proposed Changes Overview

Below is an overview of the Notice of Proposed Rulemaking (NPRM) released June 23, 2022 about changes to Title IX of the Education Amendments Act of 1972. The Office of Higher Education does not interpret the changes or make inferences of the effects of the proposed changes.

Major Changes to Title IX

Broadens the scope of sex discrimination to include pregnancy and parenting discrimination, characteristics of sex, gender identity, sexual orientation, and sex-based harassment (used to be known as sexual harassment).
Aligns Title IX with other Civil Rights laws such as Title VII, VI, Section 504 of the Rehabilitation Act of 1973.
Requires institutions to "promptly and effectively" respond to sex discrimination. It includes details of how employees must respond when told about sex-based harassment or sex discrimination; and training requirements for all students and employees.
Includes a response by institutions to sex-based harassment and discrimination that occurs off campus or outside of the United States if a hostile environment is created within the education program or activity.
Gives institution choices on how to respond to sex discrimination, including grievance procedures and informal resolution.
Explains what needs to be included in the informal resolution and grievance procedures.
Clarifies protections and processes for students with disabilities and pregnant and parenting students.
Protects students who identify as transgender or nonbinary to access same-sex facilities that of their gender identity.
Strengthens protections with regard to retaliation.
Treats complainant and respondent equitably throughout the process.

Title IX NPRM Does Not Address

Religious Exemption
Gender Identity and Participation in Intercollegiate Athletics

For more information, click on the Comparison Chart of the Title IX proposed changes versus Current Rule

Resources

U.S. Department of Education Fact Sheet

U.S. Department of Education Chart

Be sure to review how to write an effective public comment before submitting your comment so that your comment has the full impact you want!
Go to the Federal Register website (https://www.federalregister.gov/) OR to Regulations.gov
Use the search feature and type the Register Identification Number 2022-13734 or bookmark the link Federal Register :: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.
The page should look like the image below:

Click on "Submit a Formal Comment"

Complete all of the information requested in the fields. It includes your comment, what your comment is about (you pick from a drop-down field, and this is more like what role do you identify as, such as a student, parent, employee, etc.), who you areâ€”an individual, organization or anonymous. If you enter individual or organization, it will then ask for your email, contact information and phone number. If you click anonymous, no additional information is required. Remember, your comments are public!

Click the box to show that you understand that your comment is public. If you include any personal information in your comment, it will be published. If you have any concerns, please contact Melissa Watschke, Title IX Administrator (melissa.watschke@state.mn.us) at the Office of Higher Education to help you problem-solve your concerns.

Once you click the acknowledgement button, you can click submit comment! Congratulations! You submitted your comment and participated in our democracy!