Education Department Updates Title IX Regulations: Protections for Pregnant Students and Employees

September 3, 2024

Education Department Updates Title IX Regulations:

Protections for Pregnant Students and Employees

Title IX of the Education Amendments of 1972

(hereinafter, “Title IX”) bars sex discrimination in

education programs that receive federal financial assistance

(20 U.S.C. §§ 1681 et seq.). The U.S. Department of

Education’s (ED’s) regulations implementing Title IX

cover all educational institutions that receive funding from

ED programs, including all K–12 public school districts and

most colleges and universities. In mid-2024, ED updated

these regulations in a number of ways (34 C.F.R. Part 106).

Among other things, the updated regulations define the

scope of sex discrimination under Title IX to include

discrimination based on sexual orientation and gender

identity. They also alter the obligations for educational

institutions when responding to allegations of sex

discrimination, including sexual harassment. Both changes

are addressed in other CRS products (see LSB11175 and

LSB11200).

The updated Title IX regulations also adopt new

requirements for educational institutions aimed at

eliminating discrimination against pregnant students and

employees. This In Focus discusses these regulatory

updates.

The updated Title IX regulations took effect on August 1,

2024. However, various courts have issued preliminary

injunctions against the updated regulations in their entirety.

The injunctions currently cover 26 jurisdictions as well as

an assortment of schools in which students or their parents

are members of certain plaintiff groups. In general, the

court decisions have largely focused on ED’s interpretation

of sex discrimination to include discrimination based on

gender identity.

generally required to allow a student’s leave of absence

based on these conditions as long as it was deemed

necessary by a physician. Further, the regulations banned

discrimination in employment on these bases and required

educational institutions to allow an employee’s leave of

absence for these conditions. (Though beyond the scope of

this In Focus, employees enjoy additional pregnancy related

protections under other federal statutes. For more on these

laws, see CRS Report R46821, Pregnancy and Labor: An

Overview of Federal Laws Protecting Pregnant Workers,

by April J. Anderson.)

Following a 2022 Notice of Proposed Rulemaking, ED

received comments regarding pregnancy discrimination at

school. Commenters shared various experiences related to

their pregnancy, including being asked to withdraw from a

postsecondary institution and being excluded from school

activities or programs. Commenters also noted that they had

been discouraged by their educational institution from

having more children, were denied accommodations

generally, and often were unaware of their rights under

Title IX regarding pregnancy. Some noted that when

schools learn of a student’s pregnancy, they may pressure

the student to attend a different school of lower quality.

Another prominent concern was the lack of lactation

spaces, which can impair health and interrupt learning.

Updated Title IX Regulations

In its Final Rule, ED made a number of amendments to its

Title IX regulations that pertain to pregnancy. The new rule

broadens the definition of pregnancy and related conditions

and adds new requirements for educational institutions

concerning rights for pregnant students and employees.

Previous Title IX Regulations on

Pregnancy and Notice of Proposed

Rulemaking

Scope of Protection (Definition)

The updated regulations provide that educational

institutions must not discriminate based on “current,

potential, or past pregnancy or related conditions.” Under

the regulations, pregnancy or related conditions mean

pregnancy, childbirth, termination of pregnancy, lactation,

related medical conditions, and recovery. The preamble to

the regulations explains that the definition applies to “the

full spectrum of processes and events connected with

pregnancy.” The preamble acknowledges that there are

numerous potential medical conditions related to

pregnancy, including (but not limited to) fatigue,

dehydration, nausea, anemia, and prenatal or postpartum

depression.

Prior Title IX regulations, first adopted in 1975, contained

several provisions pertaining to pregnancy. For instance,

they barred discrimination against students on the basis of

pregnancy, childbirth, termination of pregnancy, or

recovery therefrom. Educational institutions were also

Interaction with Abortion Neutrality Provision and

Religious Exemption in Title IX

While both the prior and updated regulations prohibit

covered educational institutions from discriminating against

The Biden Administration sought to narrow the injunctions.

On August 16, 2024, in a 5-4 decision, the Supreme Court

denied the government’s application for a partial stay of

certain preliminary injunctions pending resolution of

appeals in the U.S. Courts of Appeals for the Fifth and

Sixth Circuits. For now, ED is barred from enforcing any

portion of the updated regulations in certain states and

selected schools. According to ED, the agency’s prior Title

IX regulations, amended in 2020, remain in place for these

states and schools.

https://crsreports.congress.gov

Education Department Updates Title IX Regulations: Protections for Pregnant Students and Employees

students and employees based on termination of pregnancy,

this requirement sits alongside two related statutory

provisions in Title IX. First, the statute provides that it shall

not be construed to “require or prohibit” an entity to pay or

provide for a benefit or service related to abortion. The

statute further provides that it shall not be construed to

authorize a penalty against someone for seeking or

receiving a benefit or service related to abortion. (20 U.S.C.

§ 1688). In light of these provisions, the preamble to the

updated regulations explains that the law does not require a

campus health facility to offer abortions, nor does it require

student health insurance plans to cover abortions. In

contrast, educational institutions that provide health

insurance for temporary conditions generally may not deny

coverage for treatment of miscarriage, as that does not fall

within the abortion neutrality provision’s scope. The agency

goes on to note that an educational institution may not

retaliate against or punish a student or employee solely for

seeking or obtaining an abortion. For instance, a school

may not deny a student a place on the student council solely

because of an abortion or deny a professor a raise on that

basis.

Second, Title IX contains a religious exemption, which

provides that the law shall not apply to an entity controlled

by a religious organization when its application would

conflict with the religious tenets of the organization (20

U.S.C. § 1681(a)(3)). The preamble to the updated

regulations acknowledges that this exemption remains in

place, and ED’s Office for Civil Rights website appears to

acknowledge exemptions from certain pregnancy

requirements for religious institutions. (For more on Title

IX’s religious exemption, see CRS Report R47613, Title

IX’s Religious Exemption: Agency Practice and Judicial

Application, by Jared P. Cole and Christine J. Back.)

Requirements Concerning Students

Under the updated regulations, educational institutions must

ensure that when a student, or someone with a legal right to

act on their behalf, informs any school employee of the

student’s pregnancy or related condition, the employee

must promptly provide contact information for the school’s

Title IX Coordinator and inform the student that the

coordinator can take action to ensure equal access to

education programs. Once a student informs the Title IX

Coordinator of their status, educational institutions must

provide a general notice of nondiscrimination and inform

the student of Title IX requirements regarding pregnancy,

including reasonable modifications, voluntary leave, and

access to a lactation space.

Educational institutions must make reasonable

modifications as necessary, based on a student’s individual

needs, to ensure equal access to education programs.

Students have discretion to accept or decline each

modification offered; if accepted, an educational institution

must implement it. Reasonable modifications can include

breaks during class for expressing breast milk,

breastfeeding, eating, drinking, or using the restroom;

intermittent absences for medical appointments; access to

online classes; changes in schedules or course sequences;

extensions of deadlines and rescheduling of tests; allowing

a student to either sit or stand or keep water nearby;

counseling; changes in space or supplies such as access to a

larger desk; or other changes. Educational institutions must

allow pregnant students to take a leave of absence and

return to the same academic status and, as practicable, the

same extracurricular status previously held.

Educational institutions must provide students with a

lactation space that is not a bathroom and is clean, shielded

from view, and free from intrusion. The regulations do not

require that the space be any particular size or designated

solely for lactation throughout the entire day.

Requirements Concerning Employees

In addition to protections for pregnant students, the updated

regulations impose obligations for educational institutions

with respect to employees who are pregnant.

Educational institutions must offer reasonable break time

for employees to express breast milk or breastfeed. They

must ensure that employees also have access to a lactation

space that is not a bathroom and is clean, shielded from

view, and free from intrusion. However, unlike relevant

obligations for pregnant students, the Title IX regulations

do not require reasonable workplace modifications that are

based on an employee’s individual needs (although, as

mentioned above, other federal laws may do so).

Selected Bills in Recent Congresses

Two bills since 2019 have sought to address the rights of

pregnant students outside of the Title IX rulemaking

context. H.R. 6914 in the 118th Congress, which has passed

the House, would require all institutions of higher education

(IHEs) participating in the federal student aid programs

authorized under Title IV of the Higher Education Act

(HEA) to provide information on resources available to

help pregnant students “carry the baby to term and parent

the baby after birth.” In the 116th Congress, H.R. 5222

would have required each IHE participating in the HEA

Title IV federal student aid programs to publish expectant

parent and parenting student policies, which would have

included information on accommodations.

At least one congressional measure aims to oppose the

updated regulations. The Congressional Review Act (CRA)

establishes procedures to enact a joint resolution of

disapproval that will render a regulation ineffective if

passed by both houses and signed by the President (or if

Congress overrides a veto). Pursuant to the CRA, H.J.Res.

165, which passed the House on July 11, 2024, would

overturn the Final Rule and prohibit the Administration

from reissuing the rule “in a substantially similar form” or

from issuing a “new rule that is substantially the same”

unless “the reissued or new rule is specifically authorized”

by a later enacted law.

Jared P. Cole, Legislative Attorney

Adam K. Edgerton, Analyst in Education Policy

https://crsreports.congress.gov

IF12752

Education Department Updates Title IX Regulations: Protections for Pregnant Students and Employees

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to

congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.

Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has

been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the

United States Government, are not subject to copyright protection in the United States. Any CRS Report may be

reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include

copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you

wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF12752 · VERSION 1 · NEW