You may have noticed while skimming through the new Title IX proposed regulations that there are now seemingly two grievance procedures to address Title IX complaints instead of one. You’ll recall that the current 2020 regulations—which, it should be noted, are still in effect—outline the grievance process for formal complaints of sexual harassment in § 106.45. In the proposed regulations, however, there are now two sections—§ 106.45 and § 106.46—governing grievance procedures for Title IX complaints. Why the split, and what’s the difference between the two processes, if any? 

In their summary of major provisions of the proposed rule, the Department of Education explains that these revisions reflect its intention to move away from the current regulations’ narrow focus on complaints of sexual harassment only. Under the proposed rule, Title IX would prohibit all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity, as well as sex-based harassment (which would also expand the current definition of sexual harassment).  

Thus, the proposed rule outlines one general process (proposed § 106.45) that covers all sex discrimination complaints under Title IX, and another section (proposed § 106.46) that provides additional requirements specifically for grievance procedures for sex-based harassment involving a postsecondary student.  

Below is a basic breakdown of the distinctions between the two sections: 

Proposed § 106.45   Proposed § 106.46 
What type of complaint does it cover?  All Title IX sex discrimination complaints, including sex-based harassment  Sex-based harassment complaints involving postsecondary student(s) 
Who are the parties?  Students, employees, third parties  At least one of the parties is a postsecondary student 
Which institutions?   K-12, postsecondary, all other institutions covered by Title IX  Postsecondary 
What is the required process?  § 106.45  § 106.45 + § 106.46 

So, in sum, § 106.45 outlines the default grievance process for all Title IX complaints. If a Title IX complaint involves sex-based harassment and at least one of the parties (complainant and/or respondent) is a postsecondary student, you would follow both § 106.45 and § 106.46. 

Again, remember that these regulations are still in the draft stage that will be subject to a lengthy public comment and revision process, so there is no need to change anything in your policies and procedures just yet. If you have any questions about this topic or anything else related to the proposed regulations, please reach out to our Title IX team at 

*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.