As a presidential candidate, now-President Biden promised that he would put a “quick end” to the Trump administration’s 2020 Title IX rules. Aiming to keep that promise, the Department of Education announced its intention to release proposed amendments to Title IX’s implementing regulations by April 2022, a month earlier than initially expected. While the April 2022 date is not binding, it signals the Biden administration’s intent to start the lengthy rulemaking process as soon as possible.
The Department of Education has indicated that it intends to propose major revisions to the current Title IX rules, including to the definition of sexual harassment and how schools must respond to complaints of sexual harassment. Further, the Department stated that in revising the current Title IX rules, it will prioritize protections for students based on sexual orientation and gender identity, with specific focus on the initiatives identified in President Biden’s Executive Orders 13988 and 14201.
Keep in mind, however, that the rulemaking process moves slowly, as seen during the prior administration. During the Trump administration, Secretary of Education Betsy DeVos issued the proposed Title IX rule in November 2018. The Education Department then spent the next 18 months (until May 6, 2020) reviewing the nearly 125,000 comments received during the rule’s notice-and-comment period, with the new rules not becoming effective until August 14, 2020. Issuing proposed amendments will officially start the rulemaking process, but President Biden has already sought comments through a public hearing process in advance of issuing the anticipated proposed rules, which may result in a faster review process than what we saw under the Trump administration. Still, depending upon the length of the time to submit comments, the number of comments received, and the time the Department needs to review those comments, the road to new regulations could be just as long for President Biden as it was for President Trump.
We will be looking out for the Department’s proposal in the spring and will provide updates as they become available. In the meantime, as always, if you have any questions about Title IX or the rulemaking process, please reach out to any member of the Franczek Title IX team.