# Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-13734 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** July 12, 2022 - **Citation:** 87 FR 41390 ## Text DEPARTMENT OF EDUCATION 34 CFR Part 106 [Docket ID ED-2021-OCR-0166] RIN 1870-AA16 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance AGENCY: Office for Civil Rights, Department of Education. ACTION: Notice of proposed rulemaking. SUMMARY: The U.S. Department of Education (Department) proposes to amend the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The purpose of the proposed regulations is to better align the Title IX regulatory requirements with Title IX's nondiscrimination mandate, and to clarify the scope and application of Title IX and the obligation of all schools, including elementary schools, secondary schools, postsecondary institutions, and other recipients that receive Federal financial assistance from the Department (referred to below as recipients or schools) to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination. The Department recognizes that schools vary in size, student populations, and administrative structure. The proposed regulations would enable all schools to meet their obligations to comply fully with Title IX while providing them appropriate discretion and flexibility to account for these variations. DATES: Comments must be received on or before September 12, 2022. ADDRESSES: Comments must be submitted via the Federal eRulemaking Portal at http://www.regulations.gov . However, if you require an accommodation or cannot otherwise submit your comments via http://www.regulations.gov , please contact the program contact person listed under FOR FURTHER INFORMATION CONTACT . The Department will not accept comments by fax or by email, or comments submitted after the comment period closes. To ensure that the Department does not receive duplicate copies, please submit your comments only once. Additionally, please include the Docket ID at the top of your comments. The Department strongly encourages you to submit any comments or attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), the Department strongly encourages you to convert the PDF to “print-to-PDF” format, or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a print-to-PDF format allows the Department to electronically search and copy certain portions of your submissions to assist in the rulemaking process. • Federal eRulemaking Portal: Please go to http://www.regulations.gov to submit your comments electronically. Information on using http://www.regulations.gov , including instructions for finding a rule on the site and submitting comments, is available on the site under “FAQ.” Note: The Department's policy is to generally make comments received from members of the public available for public viewing on the Federal eRulemaking Portal at http://www.regulations.gov . Therefore, commenters should include in their comments only information about themselves that they wish to make publicly available. Commenters should not include in their comments any information that identifies other individuals or that permits readers to identify other individuals. If, for example, your comment describes an experience of someone other than yourself, please do not identify that individual or include information that would allow readers to identify that individual. The Department will not make comments that contain personally identifiable information (PII) about someone other than the commenter publicly available on http://www.regulations.gov for privacy reasons. This may include comments where the commenter refers to a third-party individual without using their name if the Department determines that the comment provides enough detail that could allow one or more readers to link the information to the third party. If your comment refers to a third-party individual, to help ensure that your comment is posted, please consider submitting your comment anonymously to reduce the chance that information in your comment about a third party could be linked to the third party. The Department will also not make comments that contain threats of harm to another person or to oneself available on http://www.regulations.gov . FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of Education, 400 Maryland Ave. SW, PCP-6125, Washington, DC 20202. Telephone: 202-245-7705. You may also email your questions to T9NPRM@ed.gov , but as described above, comments must be submitted via the Federal eRulemaking Portal at http://www.regulations.gov . If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1. SUPPLEMENTARY INFORMATION: Executive Summary Purpose of This Regulatory Action The Department's review of the current regulations and of information received during and pursuant to a week-long public hearing as well as stakeholder listening sessions and meetings suggest that the current regulations do not best fulfill the requirement of Title IX of the Education Amendments of 1972 (Title IX) that schools and institutions that receive Federal financial assistance eliminate discrimination on the basis of sex in their education programs or activities. The Department therefore proposes that the current regulations should be amended to provide greater clarity regarding the scope of sex discrimination, including recipients' obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Further, the Department proposes that the current regulations could better account for the variety of education programs or activities covered by Title IX, which include recipients' education programs or activities serving students in elementary schools, secondary schools, and postsecondary institutions. The Department makes these proposals based on an extensive review of its regulations implementing Title IX, as well as the live and written comments received during a nationwide virtual public hearing on Title IX held in June 2021. In addition, in 2021, the Office for Civil Rights held numerous listening sessions with a wide array of stakeholders on various issues related to Title IX and considered input from stakeholders during meetings held in 2022 under Executive Order 12866, after the NPRM was submitted to OMB. Executive Order on Regulatory Planning and Review, E.O. 12866, 58 FR 51735 (Oct. 4, 1993), https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf . To address these concerns, the Department proposes amending the Title IX regulations to: • Require recipients to adopt grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination and take other necessary steps to provide an educational environment free from sex discrimination; 1 1 Throughout this preamble, the term “sex discrimination” means “discrimination on the basis of sex” as that language is used in the statutory text of Title IX. • Clarify the Department's view of the scope of Title IX's prohibition on sex discrimination, including related to a hostile environment under the recipient's education program or activity, as well as discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and • Clarify a recipient's obligations to students and employees who are pregnant or experiencing pregnancy-related conditions. Summary of the Major Provisions of This Regulatory Action With regard to sex-based harassment (as defined in proposed § 106.2), the proposed regulations would: • Define sex-based harassment to include but not be limited to sexual harassment; • Provide and clarify, as appropriate, definitions of various terms related to a recipient's obligations to address sex discrimination, including sex-based harassment; • Clarify how a recipient is required to take action to end any sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects; and • Clarify a recipient's obligations related to the grievance procedures and other necessary steps when it receives a complaint of sex discrimination. With regard to discrimination against individuals who are pregnant or parenting, the proposed regulations would: • Define the term “pregnancy or related conditions” and the term “parental status,” and prohibit discrimination against students and applicants for admission or employment on the basis of current, potential, or past pregnancy or related conditions; and • Clarify a recipient's obligations to students and employees who are pregnant or experiencing related conditions. In addition, the proposed regulations would: • Articulate the Department's understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; • Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and recordkeeping; • Specify that a recipient must train a range of relevant persons on the recipient's obligations under Title IX; • Clarify that, unless otherwise provided by Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and • Clarify a recipient's obligation to address retaliation. Costs and Benefits As further detailed in the Regulatory Impact Analysis, the Department estimates that the total monetary cost savings to recipients of the proposed regulations over ten years would be in the range of $9.8 million to $28.2 million. Although the Department cannot quantify, in monetary terms, the benefits of the proposed regulations to those who have been subjected to sex discrimination, the Department recognizes that sex discrimination, including sex-based harassment, can have profound and long-lasting economic costs for students, employees, and other members of a recipient's surrounding community. See, e.g., Centers for Disease Control and Prevention, Fast Facts: Preventing Sexual Violence, https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html (last visited June 16, 2022) (describing the economic impact of sexual violence involving physical contact on male and female victims within their lifetimes); Cora Peterson et al., Lifetime Economic Burden of Intimate Partner Violence Among U.S. Adults, 55 a.m. J. Preventative Med. 433 (2018) (estimating the economic impact of intimate partner violence on male and female victims within their lifetimes). The Department now believes that these proposed regulations more effectively fulfill Title IX's guarantee that a recipient's education program or activity is free from sex discrimination. As proposed, the Department's preliminary view is that these amendments would lower the costs associated with sex discrimination, thereby producing a demonstrable benefit for students, employees, and others participating in a recipient's education program or activity. In the Regulatory Impact Analysis, the Department estimates the likely monetary costs of this regulatory action for recipients. The clarification of grievance procedures required for all forms of sex discrimination and adoption of new reporting and notification framework for employees will carry some costs. The Department notes that although it cannot fully quantify the economic impact of the proposed regulations, the Department believes that these benefits are substantial and would significantly outweigh the estimated costs of the proposed regulations. The Department also acknowledges that the proposed regulations deviate from some past agency statements on Title IX's coverage of discrimination based on sexual orientation and gender identity. As explained in the Regulatory Impact Analysis, the Department believes that any costs associated with the shift away from its most recent prior interpretation would be minimal. For example, the proposed requirement to permit students to participate in a recipient's education program or activity consistent with their gender identity may require updating of policies or training materials, but would not require significant expenditures, such as construction of new facilities. The Department proposes that the benefits associated with this change—increased protection of students from sex discrimination and better alignment of the regulations with Title IX's nondiscrimination mandate—far outweigh any costs. Invitation to Comment: The Department invites you to submit comments regarding the proposed regulations. To ensure that your comments have the maximum effect on developing the final regulations, you should identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and arrange your comments in the same order as the proposed regulations. The Department invites you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 (explained further below) and their overall goal of reducing the regulatory burden that might result from the proposed regulations. Please let the Department know of any further ways that it may reduce potential costs or increase potential benefits, while preserving the effective and efficient administration of the Department's programs and activities. The Department also welcomes comments on any alternative approaches to the subjects addressed by the proposed regulations. During and after the comment period, you may inspect public comments about the proposed regulations by accessing Regulations.gov . You may also inspect the comments in person. Please contact the person listed under FOR FURTHER INFORMATION CONTACT to make arrangements to inspect the comments in person. Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record: Upon request, the Department will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed regulations. To schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT . Table of Contents Background • History of Title IX's Nondiscrimination Mandate and Related Regulations • The Department's Review of the Title IX Regulations • Significant Proposed Regulations I. Provisions of General Applicability II. Recipient's Obligation to Operate Its Education Program or Activity Free from Sex Discrimination III. Pregnancy and Parental Status IV. Title IX's Coverage of All Forms of Sex Discrimination V. Retaliation VI. Outdated Regulatory Provisions VII. Directed Questions • Regulatory Impact Analysis Background The mission of the Department's Office for Civil Rights (OCR) is to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation's schools. One of the Federal civil rights laws that OCR enforces is Title IX, which prohibits discrimination on the basis of sex under education programs or activities that receive Federal financial assistance. 20 U.S.C. 1681-1688. Unfortunately, sex discrimination—sometimes overlapping with other forms of discrimination, such as race discrimination and disability discrimination—remains a serious problem, keeping affected students from benefiting fully from their school's education programs and activities. In March 2021, President Joseph R. Biden, Jr. issued the Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, and directed the Secretary of Education, in consultation with the Attorney General, to review all existing regulations, orders, guidance documents, policies and any other similar agency actions for consistency with Title IX and other governing laws. The goal of the Executive Order was to ensure “that all students [are] guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.” Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, E.O. 14021, 86 FR 13803 (Mar. 11, 2021), https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf . Also, as set out in the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, issued in January 2021, this Administration's policy is “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII [of the Civil Rights Act of 1964] and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, E.O. 13988, 86 FR 7023 (Jan. 25, 2021), https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf . That Executive Order further noted that under the reasoning of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), “[l]aws that prohibit sex discrimination—including Title IX of the Education Amendments Act of 1972, as amended (20 U.S.C. 1681 et seq. ) . . . along with their respective implementing regulations—prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.” Id. Like Executive Order 14021, Executive Order 13988 directed the Secretary of Education, in consultation with the Attorney General, to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” promulgated under any statute or regulation that prohibits sex discrimination for their consistency with the stated policy. Id. As these Executive Orders directed, the Department conducted an extensive review of its Title IX regulations and policy documents for consistency with Title IX's statutory prohibition on sex discrimination in federally funded education programs or activities. This review included careful consideration of the comments and feedback received during a nationwide virtual public hearing on Title IX that OCR held in June 2021, OCR's numerous listening sessions in 2021 with a wide array of individuals and organizations on various Title IX issues, and meetings with stakeholders held in 2022 under Executive Order 12866, after the NPRM was submitted to the Office of Management and Budget (OMB). Office of Management and Budget, Office of Information and Regulatory Affairs, Reginfo.gov, http://reginfo.gov/public (last visited June 2, 2022). Based on that review and input, the Department proposes that the current regulations should be amended to support full implementation of Title IX's prohibition on sex discrimination under a recipient's education program or activity. In its review, the Department heard two overarching concerns from students, parents, recipients, advocates, and other concerned stakeholders, namely that: (1) there is a need for greater clarity on how to ensure that complaints of sex-based harassment are resolved in a prompt and equitable manner; and (2) the current regulations do not adequately clarify or specify the scope of sex discrimination prohibited by Title IX, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity. The Department has determined that more clarity and greater specificity would better equip recipients of Federal funding 2 to create and maintain school environments free from sex discrimination. This, in turn, will help recipients ensure that all persons have equal access to educational opportunities in accordance with Title IX's nondiscrimination mandate. 2 The text of Title IX states that the statute applies to “any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a). The definition of the term “Federal financial assistance” under the Title IX regulations is not limited to monetary assistance, but encompasses various types of in-kind assistance, such as a grant or loan of real or personal property, or provision of the services of Federal personnel. See 34 CFR 106.2(g)(2) and (3). Throughout this preamble, terms such as “Federal funding,” “Federal funds,” and “federally funded” are used to refer to “Federal financial assistance,” and are not meant to limit application of the statute or its implementing regulations to recipients of certain types of Federal financial assistance. The goal of the Department's proposed regulations is thus to fully effectuate Title IX by clarifying and specifying the scope and application of Title IX protections and recipients' obligation not to discriminate on the basis of sex. Specifically, this proposed regulatory action focuses on ensuring that recipients prevent and address sex discrimination, including but not limited to sex-based harassment, in their education programs or activities; clarifying the scope of Title IX's protection for students and others who are participating or attempting to participate in a recipient's education program or activity; defining important terms related to a recipient's obligations under Title IX; ensuring the provision of supportive measures, as appropriate to restore or preserve a complainant's or respondent's access to the recipient's education program or activity; clarifying a recipient's responsibilities toward students who are pregnant or experiencing pregnancy-related conditions; and clarifying that Title IX's prohibition on sex discrimination encompasses discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. In addressing confusion about coverage of sex-based harassment in the current regulations, the Department's proposed regulations also set out requirements that enable recipients to meet their obligations in settings that vary in size, student populations, and administrative structure. The proposed regulatory action would strengthen the current framework, clarify the scope and application of Title IX, and fully align the Title IX regulations with the nondiscrimination mandate of Title IX. I. History of Title IX's Nondiscrimination Mandate and Related Regulations Enacted in 1972, Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a). Title IX is cast in broad terms. It imposes, as a condition on receipt of Federal funds for education programs or activities, a blanket prohibition on sex-based discrimination, with a small number of “specific, narrow exceptions to that broad prohibition.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005). Congress did not limit Title IX's nondiscrimination condition to conduct engaged in “by” the recipient or its agents, but rather extended it to any “exclu[sion] from participation in,” “deni[al of] the benefits of,” or “subject[ion] to discrimination under,” any recipient's education program or activity. Congress drafted Title IX “with an unmistakable focus on the benefited class,” and did not “writ[e] it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices.” Cannon v. Univ. of Chi., 441 U.S. 677, 691-93 (1979). Eliminating sex discrimination rooted in stereotypical perceptions of women's abilities, competence, and worthiness to participate in educational programs—as both student and employee—was also fundamental to Title IX. See generally 118 Cong. Rec. 5803-12 (1972) (statement of Sen. Birch Bayh). According to Senator Birch Bayh, Title IX's sponsor in the U.S. Senate, discrimination in postsecondary education was driven by the widespread, but false, perception that the duty or desire of women to get married and bear children made them disinterested in pursuing education or professional achievement. Id. at 5804. Because of this stereotype, many American schools did not wish to “waste a `man's place' on a woman.” Id. Thus, Senator Bayh said sex discrimination in “admissions, scholarship programs, faculty, hiring and promotion, professional staffing, and pay scales,” was “one of the great failings of the American educational system.” Id. at 5803. Title IX authorizes and directs the Department, as well as other agencies “to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” 20 U.S.C. 1682. In 1979, the Supreme Court explained in Cannon v. University of Chicago that the objectives of Title IX are two-fold: first, to “avoid the use of federal resources to support discriminatory practices” and second, to “provide individual citizens effective protection against those practices.” 441 U.S. at 704. In 1982, the Court clarified the broad scope of Title IX in North Haven Board of Education v. Bell, stating: “[I]f we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.” 456 U.S. 512, 521 (1982) (citations and internal alterations omitted). Throughout this preamble, when the Department refers to Title IX's nondiscrimination mandate or requirement, it means the directive of the statutory text, including Title IX's purposes and prohibition on sex discrimination as set out in Cannon and North Haven Board of Education. In 1975, the Department's predecessor, the Department of Health, Education, and Welfare (HEW), first promulgated regulations under Title IX 3 after multiple Congressional hearings. 121 Cong. Rec. 20467 (1975) (statement of Sen. Birch Bayh). They were also subject to a statutory “laying before” provision, designed to afford Congress an opportunity to examine the proposed regulations and disapprove them by resolution within 45 days if deemed inconsistent with Title IX. N. Haven Bd. of Educ., 456 U.S. at 531-32. The Supreme Court has held that the fact that no such resolution succeeded “strongly implies” Congress' agreement with the Title IX regulations. Grove City Coll. v. Bell, 465 U.S. 555, 568 (1984); N. Haven Bd. of Educ., 456 U.S. at 533-35. 3 45 CFR part 86 (1975). In 1980, Congress created the United States Department of Education. Public Law 96-88, sec. 201, 93 Stat. 669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 5, 1980). By operation of law, all of HEW's determinations, rules, and regulations continued in effect and all functions of HEW's Office for Civil Rights, with respect to educational programs, were transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The regulations implementing Title IX were recodified without substantive change in 34 CFR part 106. See 45 FR 30802, 30955-65 (May 9, 1980). The regulations were promulgated to effectuate the purposes of Title IX, specifically to “eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance.” 34 CFR 106.1. The regulations implemented Title IX's nondiscrimination mandate through provisions that addressed sex discrimination in hiring, admissions, athletics, and other aspects of a recipient's education program or activity. See generally 34 CFR part 106. Since 1975, the Department's Title IX regulations have required a recipient to take actions important for the prevention and elimination of sex discrimination, including by designating an employee to coordinate the recipient's efforts to comply with Title IX (34 CFR 106.8(a)), adopting a nondiscrimination policy (34 CFR 106.8(b)), adopting and publishing grievance procedures providing for prompt and equitable resolution of sex discrimination complaints (34 CFR 106.8(c)), and prohibiting discrimination against students and employees based on pregnancy and childbirth (34 CFR 106.40(b); 34 CFR 106.57). At that time, Federal courts had not yet addressed a recipient's Title IX obligations with respect to sex-based harassment (including sexual harassment), sex stereotyping, or discrimination based on sexual orientation and gender identity. Since then, the understanding of Title IX has evolved through judicial interpretation, with relevant case law supporting the broad reach of its nondiscrimination mandate, and OCR guidance and subsequent regulations evolving accordingly. In 1992, the Supreme Court held that, in some circumstances, a school district could be liable for monetary damages under Title IX if a teacher sexually harasses a student. Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60 (1992); see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). In Gebser, the Court specifically recognized the authority of Federal agencies, such as the Department, to “promulgate and enforce requirements that effectuate [Title IX's nondiscrimination mandate],” even in circumstances that would not give rise to a claim for monetary damages. 524 U.S. at 292. The Court later held that schools also may be liable for monetary damages under certain conditions if a student sexually harasses another student in the school's program. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999). OCR interpreted Title IX as prohibiting sexual harassment as early as 1981, see U.S. Dep't of Educ., Office for Civil Rights, Sexual Harassment: It's Not Academic, Office for Civil Rights at 2 (1988) (1988 Sexual Harassment Pamphlet) (quoting OCR Policy Memorandum, Aug. 31, 1981, from Antonio J. Califa, Director for Litigation, Enforcement and Policy Service, OCR to Regional Civil Rights Directors), https://files.eric.ed.gov/fulltext/ED330265.pdf , and issued a series of documents to provide guidance to recipients on how to meet their obligations as well as information about students' Title IX rights. In 2018, the Department issued a Notice of Proposed Rulemaking (2018 NPRM) to clarify and modify the Title IX regulations, 83 FR 61462 (Nov. 29, 2018), and in 2020 the Department amended the Title IX regulations (the 2020 amendments) specifying how recipients must respond to allegations of sexual harassment in their education programs or activities. 85 FR 30026 (May 19, 2020). Title IX has also long been understood to prohibit discrimination related to pregnancy, consistent with its legislative history and the broad sweep of its sex-discrimination prohibition. Conley v. Nw. Fla. State Coll., 145 F. Supp. 3d 1073, 1077-78 (N.D. Fla. 2015); see also Wort v. Vierling, Case No. 82-3169, slip op. (C.D. Ill. Sept. 4, 1984), aff'd on other grounds, 778 F.2d 1233 (7th Cir. 1985); Muro v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., No. CV 19-10812, 2019 WL 5810308, at *3 (E.D. La. Nov. 7, 2019) (“Courts have held that discrimination on the basis of pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title IX.”); Varlesi v. Wayne State Univ., 909 F. Supp. 2d 827, 854 (E.D. Mich. 2012) (“[P]regnancy discrimination . . . is unquestionably covered as a subset of sex discrimination under Title IX . . . .”). Title IX regulations regarding pregnancy, which were part of the 1975 HEW regulations, prohibit recipients from discriminating against students or employees based on “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom,” 34 CFR 106.40(b)(1), 106.57(b), and prohibit sex-based distinctions on the basis of “parental, family, or marital status,” 34 CFR 106.40(a), 106.57(a). In guidance documents from 1991 and 2013, OCR emphasized that discrimination against pregnant students is a form of sex discrimination that may have significant adverse consequences for educational attainment and long-term economic stability, but the Department's regulations regarding pregnancy have remained unchanged since 1975. The Department proposes updated regulations to ensure full implementation of Title IX with respect to pregnancy and related conditions. Although the proposed regulations are based exclusively on Title IX, the Department notes that later-enacted statutes provide additional context and considerations related to discrimination based on pregnancy and or related conditions. In 1978, for example, Congress enacted the Pregnancy Discrimination Act (PDA), which amended the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) to prohibit employers from discriminating against employees “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. 2000e. The PDA requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Id. In 2015, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on pregnancy discrimination and related issues clarifying that Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth, including lactation. U.S. Equal Emp. Opportunity Comm'n, Enforcement Guidance on Pregnancy Discrimination and Related Issues (June 25, 2015) (2015 EEOC Pregnancy Guidance), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues . Breastfeeding employees also have protections under the Affordable Care Act (ACA), which amended the Fair Labor Standards Act to require employers to provide reasonable break times and a private place, other than a bathroom, for covered employees who are breastfeeding to express milk for one year after the child's birth, 29 U.S.C. 207(r)(1). In addition, Section 188 of the Workforce Innovation and Opportunity Act (WIOA), enforced by the Department of Labor (DOL), prohibits WIOA Title I-financially assisted programs, activities, training, and services from discriminating based on pregnancy, childbirth, or related medical conditions, including lactation and pregnancy-related disorders, as a form of sex discrimination. U.S. Dep't of Labor, Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act, 29 CFR 38.7(a), 38.8 (2017). Because both Title VII and Title IX prohibit sex discrimination, the Supreme Court and lower Federal courts often rely on interpretations of Title VII to inform interpretations of Title IX, and both laws apply to employees in the educational context. See, e.g., Franklin, 503 U.S. at 75; Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65-66 (1st Cir. 2002); Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001). Consequently, the treatment of pregnancy-related discrimination under the PDA, the ACA, and other statutes enacted since 1975 informs, though does not dictate, the Department's understanding of discrimination on the basis of sex under Title IX. The Department's Title IX regulations have never directly addressed the application of Title IX to discrimination based on sexual orientation or gender identity. OCR first issued guidance on the rights of gay and lesbian students in its 1997 Sexual Harassment Guidance, recognizing that harassment of a sexual nature directed at gay or lesbian students may constitute sexual harassment prohibited by Title IX. U.S. Dep't of Educ., Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 FR 12034, 12039 (Mar. 13, 1997) (1997 Sexual Harassment Guidance) (revised in 2001), https://www.govinfo.gov/content/pkg/FR-1997-03-13/pdf/97-6373.pdf . OCR reinforced Title IX's coverage of this form of harassment in 2001. U.S. Dep't of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties at 3, noticed at 66 FR 5512 (Jan. 19, 2001) (rescinded upon effective date of 2020 amendments, Aug. 14, 2020) (2001 Revised Sexual Harassment Guidance), www.ed.gov/ocr/docs/shguide.pdf . Since then, OCR has recognized that Title IX prohibits discrimination based on gender identity. See, e.g., U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence at 5 (Apr. 29, 2014) (rescinded in 2017) (2014 Q&A on Sexual Violence), www.ed.gov/ocr/docs/qa-201404-title-ix.pdf ; U.S. Dep't of Justice and U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on Title IX and Transgender Students (May 13, 2016) (rescinded in 2017) (2016 Dear Colleague Letter on Title IX and Transgender Students), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf . Most recently, in 2021, OCR published a Notice of Interpretation in the Federal Register to state explicitly that Title IX's prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity, consistent with the Supreme Court's reasoning in Bostock. 140 S. Ct. 1731; U.S. Dep't of Educ., Office for Civil Rights, Notice of Interpretation—Enforcement of Title IX with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 FR 32637 (June 22, 2021) (2021 Bostock Notice of Interpretation), https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf . Against this backdrop and for reasons described in this preamble, the Secretary proposes to amend the Title IX regulations at 34 CFR 106.1, 106.2, 106.6, 106.8, 106.11, 106.21, 106.30, 106.31, 106.40, 106.41, 106.44, 106.45, 106.46, 106.51, 106.57, 106.60, 106.71, and 106.81, as well as add new 106.10 and 106.47 and redesignate current 106.16 as 106.18 in subpart B and current 106.46 to 106.48 within subpart D. The Secretary also proposes to delete 34 CFR 106.3(c) and (d), 106.16, 106.17, 106.30, and 106.41(d) in their entirety, and delete portions of 34 CFR 106.15 and 106.21 to the extent they refer to 34 CFR 106.16 and 106.17. II. The Department's Review of the Title IX Regulations On April 6, 2021, OCR issued a letter to students, educators, and other stakeholders that provided information about the steps the Department was taking to review its regulations, orders, guidance, policies, and other similar agency actions under Title IX. U.S. Dep't of Educ., Office for Civil Rights, Letter from Acting Assistant Secretary Suzanne B. Goldberg to Students, Educators, and other Stakeholders re Exec. Order 14021 (Apr. 6, 2021), http://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf . This comprehensive review, as directed by Executive Order 14021, includes OCR's review of all agency actions, including the 2020 amendments, to determine whether changes to the Department's Title IX regulations are necessary to fulfill Title IX and OCR's commitment to ensuring equal and nondiscriminatory access to education for students at all educational levels. Id. at 2. OCR explained that its review would be guided by “our responsibility to ensure that schools are providing students with a nondiscriminatory educational environment, including appropriate supports for students who have experienced sexual harassment, including sexual violence, and other forms of sex discrimination.” Id. OCR also explained that “[t]his responsibility includes ensuring that schools have grievance procedures that provide for the fair, prompt, and equitable resolution of reports of sexual harassment and other sex discrimination, cognizant of the sensitive issues that are often involved.” Id. On May 20, 2021, OCR published a notice in the Federal Register announcing a nationwide virtual public hearing to gather information for the purpose of improving enforcement of Title IX. U.S. Dep't of Educ., Office for Civil Rights, Announcement of Public Hearing; Title IX of the Education Amendments of 1972, 86 FR 27429 (May 20, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf . OCR expressed a particular interest in comments on the Title IX regulations related to sexual harassment, including the 2020 amendments, and comments on discrimination based on sexual orientation and gender identity in educational environments. Id. OCR requested live comments through the virtual hearing platform and written comments via email. The virtual hearing was held from June 7, 2021, to June 11, 2021. Over 280 students, parents, teachers, faculty members, school staff, administrators, and other members of the public provided live comments during the virtual public hearing. The transcript from the June 2021 Title IX Public Hearing is available at https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf . OCR received over 30,000 written comments via email. The written comments may be viewed at https://www2.ed.gov/about/offices/list/ocr/public-hearing.html . In addition to soliciting live and written comments as part of the June 2021 Title IX Public Hearing, OCR also conducted listening sessions with stakeholders expressing a variety of views on the 2020 amendments and other aspects of Title IX, including advocates for survivors of sexual violence, students accused of sexual misconduct, and LGBTQI+ 4 students; organizations focused on Title IX and athletics; organizations focused on free speech and due process; organizations representing elementary schools, secondary schools, and postsecondary institutions, teachers, administrators, and parents; attorneys representing survivors, accused students, and schools; State attorneys general offices; Title IX Coordinators and other school administrators; individuals who provide training on Title IX to schools; individuals who work in campus law enforcement; and individuals who have participated in school-level Title IX proceedings. 4 The Department generally uses the term “LGBTQI+” to refer to students who are lesbian, gay, bisexual, transgender, queer, questioning, asexual, intersex, nonbinary, or describe their sex characteristics, sexual orientation, or gender identity in another similar way. When referring to some outside resources or past OCR guidance documents, this preamble also uses variations of this acronym to track the content of those documents, as appropriate. Responses to OCR's request for comments for the June 2021 Title IX Public Hearing and listening sessions with stakeholders revealed to OCR areas of concern and confusion following the implementation of the 2020 amendments. OCR heard from stakeholders that aspects of the new requirements were not well-suited to some or all educational environments or to effectively advancing Title IX's nondiscrimination mandate. More specifically, at the June 2021 Title IX Public Hearing and in listening sessions, elementary school and secondary school recipients expressed concern that certain requirements impeded their successful management of the day-to- day school environment. At the postsecondary level, recipients expressed concern regarding the new requirement to provide a live hearing with advisor-conducted cross-examination (current § 106.45(b)(6)), both because of the increased administrative burden and because of the requirement's effect on students' willingness to bring forward complaints and participate in the grievance process. Other stakeholders also expressed that this requirement is unnecessarily adversarial, retraumatizing, chilling to students' willingness to report incidents, and not more effective than other means of determining whether a violation of the school's prohibition on sexual harassment occurred. Still other stakeholders urged the Department to preserve the live hearing and adversarial cross-examination requirements. These stakeholders stated that the hearing and cross-examination requirements ensured fundamental fairness in a high-stakes process in a way that is consistent with the tenets of the American justice system. Some postsecondary recipients expressed concern that the requirements in the 2020 amendments intruded on their professional judgment and expertise about how best to respond to allegations of student misconduct in their educational environment. A variety of stakeholders, including some recipients, also expressed concerns about the limitations on a recipient's obligation to respond to notice of sexual harassment and the narrowing of the definition of “sexual harassment” from the Department's previous position (current §§ 106.30, 106.44). They suggested the limitations in the 2020 amendments allowed recipients to ignore conduct that could or would limit or deny access to their learning environment based on sex. Similarly, stakeholders expressed concerns that recipients refused to respond to complaints of a hostile environment based on sex in a program or activity because the initial sexually harassing conduct occurred off-campus or outside the United States (current § 106.44). OCR also heard from stakeholders who were concerned that the deliberate indifference standard was an inappropriately narrow standard of responsibility for the administrative enforcement context in light of Title IX's nondiscrimination mandate. Stakeholders also requested that the Department clarify Title IX's application to issues not currently addressed, or not viewed by the stakeholders as addressed adequately, by the current regulations. In particular, stakeholders requested that the Department specify protections related to discrimination based on sexual orientation and gender identity. These requests noted the historical and ongoing discrimination experienced by LGBTQI+ students, the recent enactment of State laws restricting transgender students from participating in school consistent with their gender identity, and the void created by OCR's withdrawal of its 2016 Dear Colleague Letter on Title IX and Transgender Students. Other stakeholders urged that transgender students must not be permitted to participate in school consistent with their gender identity, either in all or certain circumstances. Stakeholders also requested that the Department clarify that discrimination based on sex characteristics is a form of sex discrimination and, in particular, that Title IX protects intersex students from discrimination. OCR also heard from stakeholders requesting clarification on Title IX's protections against pregnancy discrimination and its prohibition on rules that treat parents differently based on sex. The Department heard more from stakeholders in 2022 in meetings held under Executive Order 12866, after the NPRM was submitted to OMB. Having considered the comments and other information received in connection with the June 2021 Title IX Public Hearing, 2021 listening sessions, and the 2022 meetings held under Executive Order 12866, the Department's proposed regulations aim to strengthen the current framework, improve clarity for recipients to facilitate their compliance, and better align the Title IX regulations with the nondiscrimination mandate of Title IX, particularly its goal of “provid[ing] individual citizens effective protection against [discriminatory] practices.” Cannon, 441 U.S. at 704. The Department's goals are to clarify the scope of Title IX's protection from sex discrimination for students participating or attempting to participate in an education program or activity; to state in greater detail and with greater clarity than in the current regulations a recipient's responsibilities toward pregnant students; to ensure the provision of supportive measures, as available and appropriate, to those who experience any form of sex discrimination, including but not limited to sex-based harassment; and to ensure that recipients understand their obligation to address sex discrimination in their education programs or activities. The overarching goal is to ensure that no person experiences sex discrimination in education. To that end, the Department aims to ensure that all recipients can implement Title IX's nondiscrimination mandate fully and fairly in their educational environments, including with procedures for responding to complaints of sex discrimination that are prompt and equitable for all participants. In reviewing the 2020 amendments, the Department also considered its regulations implementing other laws with requirements that parallel or overlap with a recipient's obligations under Title IX. For example, the Department considered the requirements for postsecondary institutions under the 2013 reauthorization of the Violence Against Women Act (VAWA 2013), Public Law 113-4, 304, 127 Stat. 54, 89-92, which amended the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), 20 U.S.C. 1092(f) (2018). The Clery Act requires institutions of higher education participating in Federal financial aid programs under the Higher Education Act of 1965, 20 U.S.C. 1001 et seq. (1965), to comply with certain campus safety- and security-related requirements. The 2013 VAWA amended the Clery Act to require higher education institutions to compile statistics for incidents of dating violence, domestic violence, sexual assault, and stalking and disclose that information in their annual security reports. 20 U.S.C. 1092(f)(1)(F)(iii). The Clery Act also requires disclosure of certain policies, procedures, and programs, including programs to prevent domestic violence, dating violence, sexual assault, and stalking and programs to promote the awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking among students and employees. 20 U.S.C. 1092(f)(8)(A), (B). The Department issued regulations in 2014 to implement those changes to the statute. Final Rule, Violence Against Women Act: Institutional security policies and crime statistics, 79 FR 62752 (Oct. 20, 2014). https://www.govinfo.gov/content/pkg/FR-2014-10-20/pdf/2014-24284.pdf . The Violence Against Women Act Reauthorization Act of 2022 did not amend the Clery Act, but it did update the definitions of “dating violence,” “domestic violence,” and “stalking” in VAWA, which are incorporated into the Clery Act and the current and proposed Title IX regulations. Public Law 117-103, Division W, Consolidated Appropriations Act, 2022. The Department proposes updates to the 2020 amendments as necessary to account for these changes. The Department acknowledges that recipients and other stakeholders may have made changes to their policies or procedures to align with the 2020 amendments. For example, schools have been required to revise existing policies and procedures, or adopt new policies and procedures, for the 2020-2021 school year and the current 2021-2022 school year in reliance on the 2020 amendments. Recipients' changes may include—among others—policies and procedures based on the 2020 amendments' adoption of a new definition of “sexual harassment” and “notice” as well as the deliberate indifference standard, mandatory dismissals, the requirement for postsecondary recipients to hold live hearings with cross-examination, and the training of Title IX Coordinators, investigators, decisionmakers, and other staff regarding the new requirements. However, stakeholder feedback from the June 2021 Public Hearing, the 2021 listening sessions, and the 2022 meetings held under Executive Order 12866 indicated that many recipients did not agree with the 2020 definition of “sexual harassment” and had found that some of the procedural requirements issued in 2020 made compliance more difficult for them. Recipients expressed concern that the mandatory dismissal requirements and live hearing and cross-examination requirements were having a chilling effect on students who might otherwise report sex-based harassment. The Department therefore has good reason to believe that many recipients would appreciate the flexibility the proposed regulations would afford them to better fulfill their obligation not to discriminate based on sex in their education programs or activities. For example, the proposed regulations would enable recipients to tailor procedures to be effective at addressing sex discrimination in their educational environment by providing an option to conduct live hearings with cross-examination or have the parties meet separately with the decisionmaker and answer questions submitted by the other party when a credibility assessment is necessary; an option to provide the parties an opportunity to review all relevant evidence instead of being obligated to produce a written investigative report; an option to offer informal resolution when appropriate without having to wait for a complaint to be filed; and an option to dismiss complaints when appropriate rather than an obligation to dismiss in specific circumstances. In addition, some stakeholders indicated that because the current regulations do not cover many forms of conduct that may cause a hostile environment based on sex in their program or activity, they created or repurposed alternative disciplinary policies to address such conduct. Such stakeholders would have discretion under the proposed regulations to keep in place policies and procedures they adopted in reliance on the 2020 amendments or to change course so long as they meet their obligations. In addition, while the Department recognizes that there may be reliance interests related to the current regulations, the Department's tentative view is that the value of better aligning the regulations with the objectives of Title IX, as reflected in proposed revisions to the regulations, substantially outweighs those interests. The proposed changes would strengthen implementation of Title IX and reduce the occurrence of sex discrimination within federally funded education programs or activities. Sex discrimination remains a serious problem that can derail students from participating and thriving in school. The Department's proposed changes would clarify Title IX's coverage of all forms of sex discrimination, strengthen existing protections, and better position schools to meet their obligation not to discriminate based on sex. The proposed changes would better ensure that schools take prompt and effective action to end sex discrimination, including sex-based harassment, with support for affected students and fair procedures for all. In short, the proposed regulations would reflect the statute's text and case law establishing that Title IX protects students from all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Moreover, as discussed in the Regulatory Impact Analysis, compliance with the proposed regulations would result in cost savings to recipients. The Department has considered the interests that stakeholders may have in avoiding further changes to recipient policies and procedures or additional costs that may be required to comply with the proposed regulations. At the same time, the Department has also considered stakeholders' interests in having Title IX regulations that are sufficiently clear to allow for effective implementation and that provide recipients with flexibility and discretion to meet their Title IX obligations and to maintain any policies and procedures that do not conflict with Title IX or the proposed regulations. Based on the information OCR received during the June 2021 Title IX Public Hearing and additional listening sessions, as well as the 2022 meetings held under Executive Order 12866, the Department believes that substantial interests support each change reflected in the proposed regulations, that these changes are designed to ensure full implementation of Title IX's nondiscrimination mandate, and that the benefits of the proposed changes in facilitating that implementation far outweigh the potential interests in maintaining the existing regulations. In each instance in which the Department is proposing to change an existing regulatory requirement, the preamble acknowledges that change when discussing the regulation and explains the Department's reasons for proposing the change. The most significant proposed revisions to the Title IX regulations are summarized below. Significant Proposed Regulations The Department is proposing significant revisions to several subcategories of the Title IX regulations. The Department discusses these significant revisions by topic rather than in numerical order. Generally, the Department does not address proposed regulatory changes that are technical or otherwise minor in effect. First, the Department discusses its proposed changes to existing definitions and its proposed new definitions of terms of general applicability in the regulations (proposed § 106.2), and its proposed provisions regarding the effect of other requirements and preservation of rights (proposed § 106.6). The Department then clarifies that Title IX obligates a recipient to respond to sex discrimination within the recipient's education program or activity in the United States, even if it occurs off-campus, including but not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution and conduct that is subject to the recipient's disciplinary authority. It also requires a recipient to respond to a hostile environment based on sex within its education program or activity in the United States, even if sex-based conduct contributing to the hostile environment occurred outside the recipient's education program or activity or outside the United States (proposed § 106.11). Second, the Department discusses a recipient's obligation to operate its education program or activity free from sex discrimination, and administrative requirements such as the responsibilities of a recipient to designate a Title IX Coordinator, disseminate a policy of nondiscrimination on the basis of sex, adopt prompt and equitable grievance procedures, and keep records to document its Title IX compliance (proposed § 106.8). The Department also discusses its proposed notification requirement, which would instruct recipients to require certain employees to notify the Title IX Coordinator when they have information about conduct that may constitute sex discrimination under Title IX, and would require other employees who have information about conduct that may constitute sex discrimination under Title IX to either (1) notify the Title IX Coordinator or (2) provide any person who gives them information about such conduct with the contact information for the Title IX Coordinator and information about how to report sex discrimination (proposed § 106.44(c)). The Department also addresses a recipient's obligation to offer supportive measures, as appropriate, to a complainant and respondent upon being notified of conduct that may constitute sex discrimination under Title IX, to the extent necessary to restore or preserve that party's access to the recipient's education program or activity (proposed § 106.44(g)). The Department also discusses its proposed definition of “sex-based harassment” (proposed § 106.2) and explains in more detail its proposed changes to the regulations regarding grievance procedures for complaints of sex discrimination (proposed § 106.45), including its proposals to include the basic requirements for grievance procedures such as treating the complainant and respondent equitably (proposed § 106.45(b)(1)); the requirement to objectively evaluate all relevant evidence that is not otherwise impermissible (proposed § 106.45(b)(6) and (7)); the standard of proof for all complaints of sex discrimination (proposed § 106.45(h)(1)); and the requirement that grievance procedures be followed before the imposition of any disciplinary sanctions (proposed § 106.45(h)(4)). The Department also explains proposed bases for discretionary dismissal of a complaint (proposed § 106.45(d)) and the proposed requirement that the recipient have a process for the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent that credibility is in dispute and relevant to evaluating one or more of the allegations of sex discrimination (proposed § 106.45(g)). The Department also describes the additional proposed requirements for postsecondary institutions in cases of sex-based harassment involving a student complainant or student respondent (proposed § 106.46), including the role of an advisor (proposed § 106.46(e)(2)) and revised hearing procedures (proposed § 106.46(g)). The Department states that a recipient will not be deemed to have violated the Title IX regulations solely because the Assistant Secretary would have reached a different determination than the recipient reached based on an independent weighing of the evidence in sex-based harassment complaints (proposed § 106.47). Third, the Department describes its proposed revisions to the Title IX regulations related to pregnancy or related conditions as well as sex discrimination related to marital, parental, and family status, to provide clarity to recipients about their obligation not to discriminate against students or employees who are pregnant or experiencing pregnancy-related conditions. These proposed revisions aim to ensure that students and employees who are pregnant or experiencing pregnancy-related conditions are not subject to discrimination based on sex in education programs or activities and include revisions to the definitions of “pregnancy or related conditions” and “parental status” (proposed § 106.2) as well as revisions to the regulations on admissions (proposed § 106.21(c)); parental, family, or marital status of students (proposed § 106.40(a)); pregnancy or related conditions of students (proposed § 106.40(b)); employment (proposed § 106.51(b)(6)); parental, family, or marital status of employees (proposed § 106.57(a)); pregnancy or related conditions of employees (proposed § 106.57(b) and (e)); and pre-employment inquiries (proposed § 106.60). Fourth, the Department proposes to clarify Title IX's scope of application, including nondiscrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity (proposed § 106.10). The Department also proposes clarifying Title IX's general prohibition on sex discrimination in education programs or activities receiving Federal financial assistance (proposed § 106.31(a)). The preamble explains that unless otherwise provided by Title IX or the regulations, in contexts in which a recipient may provide sex-separate programs or rules, such different treatment must not be applied to individuals in a way that would cause more than de minimis harm, which includes adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity (proposed § 106.31(a)(2)). Fifth, the Department discusses proposed revisions to the prohibition on retaliation (proposed § 106.71) that would build on the current regulations and further clarify what types of conduct would constitute prohibited retaliation, including peer retaliation. Finally, the Department explains its proposal to delete outdated regulatory provisions (§ 106.2(s) Definition of Transition Plan; § 106.3(c) and (d) Self-evaluation; § 106.15(b) Admissions; §§ 106.16-106.17 Transition Plans; § 106.21(a) Admission; and § 106.41(d) Adjustment period). It is the Department's intent that the severability clauses set out in §§ 106.9, 106.18 (proposed to be redesignated at § 106.16), 106.24, 106.46 (proposed to be redesignated as § 106.48), 106.62, and 106.72 of the 2020 amendments remain applicable to the proposed changes set out below. As discussed in the 2020 amendments, it is the Department's position that each of the proposed regulations discussed in this preamble would serve an important, related, but distinct purpose. 85 FR 30538. Each provision provides a distinct value to recipients, elementary schools, secondary schools, postsecondary institutions, students, employees, the public, taxpayers, the Federal government, and other recipients of Federal financial assistance separate from, and in addition to, the value provided by the other provisions. To best serve these purposes, the continued application of the severability clauses in the 2020 amendments clarifies that the proposed regulations operate independently of each other and that the potential invalidity of one provision should not affect the other provisions. In addition, the Department intends that any final regulations following these proposed regulations be enforced prospectively and not retroactively. I. Provisions of General Applicability Statute: Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U.S.C. 1681(a), but does not specify how recipients can meet their Title IX obligations. The Department has the authority to “effectuate the provisions” of the Title IX prohibition on discrimination on the basis of sex in education programs or activities receiving Federal financial assistance, specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 and 3474. Title IX also provides that the Department may secure compliance by “the termination of or refusal to grant or to continue assistance,” or “by any other means authorized by law.” 20 U.S.C. 1682. The Department may take such action only after providing a recipient with notice of the failure to comply with the statute and the Department's regulatory requirements under Title IX and after determining that “compliance cannot be secured by voluntary means.” Id. A. Purpose Section 106.1 Purpose and Effective Date Current regulations: Section 106.1 has the heading of “Purpose and effective date.” Current § 106.1 states that the purpose of the regulations is “to effectuate title IX of the Education Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except sections 904 and 906 of those Amendments) which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in this part.” Current § 106.1 further states that the regulations are “intended to effectuate section 844 of the Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 484.” Finally, current § 106.1 provides that the effective date of the regulations is July 21, 1975. Proposed regulations: The Department proposes consolidating the reference to Title IX in the first sentence by removing “of the Education Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except sections 904 and 906 of those Amendments).” The Department also proposes removing the sentence that identifies the effective date of the regulations. Reasons: Current § 106.2 defines “Title IX” and proposed § 106.2 would retain this definition of Title IX with minor revisions for completeness, accuracy, and readability. Because proposed § 106.2 would define “Title IX,” the Department proposes removing the legislative history of Title IX from § 106.1. In addition, it is the Department's view that it is unnecessary to retain a reference to the original effective date of the Title IX regulations in light of the passage of time since the enactment of Title IX and the several amendments that have followed. Because proposed § 106.1 would no longer include the effective date, the Department also proposes revising the section heading to “Purpose.” B. Definitions The Department proposes including all definitions in § 106.2, the original regulatory section containing definitions for all of the Department's Title IX implementing regulations. As part of the 2020 amendments, the Department added a separate definitions section, § 106.30, that included definitions related to a recipient's obligation to address sexual harassment. Because the definitions in that section pertain to a recipient's general obligations to take action to end sex discrimination, the Department proposes moving these definitions to § 106.2. The Department also proposes to reorganize the definitions at § 106.2. The existing definitions section does not present the definitions alphabetically, which may create confusion for recipients and others. Proposed § 106.2 would reorder the definitions to present them in alphabetical order. The Department also proposes technical edits to accommodate the consolidation of the definitions into § 106.2 and associated numbering changes. Because the Department proposes consolidating all definitions into § 106.2, the proposed regulatory text would include existing definitions in current § 106.2, as well as definitions that are new to that section. The Department limits its discussion in this preamble to the definitions that the Department proposes adding and the definitions for which the Department is proposing changes that are not exclusively technical in nature. Immediately below, the Department discusses proposed revisions to definitions and new definitions that apply throughout the Title IX regulations. In later topical sections of this preamble, the Department discusses proposed definitions relevant to those topics. Section 106.2 Definition of “Administrative Law Judge” Current regulations: Section 106.2(f) defines “administrative law judge” as “a person appointed by the reviewing authority to preside over a hearing held under this part.” Proposed regulations: The Department proposes changing the reference to a hearing held “under this part” to refer to a hearing held “under § 106.81.” Reasons: The proposed definition would replace the general reference to “a hearing held under this part” with a specific reference to a hearing held under § 106.81. This clarification is necessary to distinguish a hearing conducted as part of a postsecondary institution's sex-based harassment grievance procedures in proposed § 106.46 from a hearing conducted by an administrative law judge to secure a recipient's compliance with Title IX. Current and proposed § 106.81 adopt and incorporate into the Title IX regulations the procedural provisions applicable to Title VI of the Civil Rights Act of 1964, specifically 34 CFR 100.6-100.11 and part 101. Proposed §§ 106.2 (definition of “retaliation”) and 106.46 discuss hearings conducted as part of a recipient's sex-based harassment grievance procedures. Section 106.2 Definition of “Applicant” Current regulations: Section 106.2(j) defines “applicant” as “one who submits an application, request, or plan required to be approved by a Department official, or by a recipient, as a condition to becoming a recipient.” Proposed regulations: The Department proposes adding language to clarify that this definition refers to the use of the term “applicant” in the definition of “educational institution” in § 106.2 and to the use of the term “applicant” in § 106.4. Reasons: The proposed regulations would clarify that the definition of “applicant” in proposed § 106.2, which refers to one who seeks to become a recipient, applies only to the use of the term “applicant” in the definition of “educational institution” in current § 106.2 and to the use of the term “applicant” in § 106.4. In other provisions in the current and proposed regulations, applicant refers to one who is applying for admission as a student or other participant in a recipient's education program or activity ( e.g., § 106.21) or applying for employment ( e.g., § 106.51). Because the definition of “applicant” in current § 106.2 does not apply throughout the regulations, the Department proposes revising the definition to identify the specific provisions to which this definition applies. Section 106.2 Definitions of “Elementary School” and “Secondary School” Current regulations: Section 106.30(b) defines an “elementary and secondary school” for purposes of §§ 106.44 and 106.45 as a “local educational agency (LEA), as defined in the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA); a preschool; or a private elementary or secondary school.” Proposed regulations: The Department proposes removing the definition of “elementary and secondary school” and, in its place providing separate definitions of “elementary school” and “secondary school” in § 106.2. Proposed § 106.2 would define an “elementary school” as that term is defined by section 8101 of the ESEA (20 U.S.C. 7801(19)), and a “public or private preschool.” Proposed § 106.2 would define a “secondary school” as that term is defined by section 8101 of the ESEA (20 U.S.C. 7801(45)), and an “institution of vocational education” as defined in § 106.2 that serves secondary school students. Reasons: The proposed definitions of both “elementary school” and “secondary school” would remove the references to current §§ 106.44 and 106.45 that are in the current definition of “elementary and secondary school,” because those sections are limited to sexual harassment, whereas the proposed definitions would apply to all provisions within part 106. The proposed definitions also would remove explicit references to private schools because these schools are already included in the ESEA definitions of “elementary school” and “secondary school,” making these references unnecessary. The proposed revisions would separately define “elementary school” and “secondary school” because there is a provision in the proposed regulations that distinguishes between elementary schools and secondary schools. For consistency with the Title IX statute at 20 U.S.C. 1681(c), which states that Title IX applies to public and private preschools, the proposed definition of “elementary school” also would cover a public or private preschool. The ESEA does not separately define “preschool” and the Department has not previously done so in its Title IX regulations. The Department's position remains that a separate definition of “preschool” is not necessary and that public and private preschools fall within the proposed definition of “elementary school.” The proposed definition of “secondary school” would also cover an institution of vocational education that serves secondary school students. This addition is necessary to ensure coverage of secondary school students who attend vocational institutions and to align with the definition of “postsecondary institution” in both the current and proposed regulations, which includes institutions of vocational education that serve postsecondary school students. As defined in current § 106.2(o) and proposed § 106.2, an “institution of vocational education” could serve both secondary and postsecondary school students but secondary school students attending institutions of vocational education are unaccounted for in the current definition of “elementary and secondary school.” Section 106.2 Definition of “Postsecondary Institution” Current regulations: Section 106.30(b) defines “postsecondary institution” for purposes of §§ 106.44 and 106.45 as an institution of graduate higher education as defined in § 106.2( l ), an “institution of undergraduate higher education” as defined in § 106.2(m), an “institution of professional education” as defined in § 106.2(n), or an “institution of vocational education” as defined in § 106.2(o). Proposed regulations: The Department proposes moving the definition of “postsecondary institution” from § 106.30(b) to § 106.2 with minor revisions. Proposed § 106.2 would define a “postsecondary institution” as an “institution of graduate higher education” as defined in § 106.2, an “institution of undergraduate higher education” as defined in § 106.2, an “institution of professional education” as defined in § 106.2, or an “institution of vocational education” as defined in § 106.2 that serves postsecondary school students. Reasons: The proposed definition would remove specific references to §§ 106.44 and 106.45 in the current definition of “postsecondary institution” because those sections are limited to sexual harassment, whereas the proposed definition of “postsecondary institution” in § 106.2 would apply to all of part 106. The proposed revisions also would clarify that the definition of “postsecondary institution” applies to an “institution of vocational education” as defined in § 106.2 that serves postsecondary students. It is the Department's current view that this clarification is necessary because an “institution of vocational education,” as defined in § 106.2, could serve secondary school students or postsecondary institution students. Section 106.2 Definition of “Student With a Disability” Current regulations: None. Proposed regulations: The Department proposes adding a definition of “student with a disability” to mean a student who is an individual with a disability who would be covered by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 705(9)(B), (20)(B), or a child with a disability as defined in the Individuals with Disabilities Education Act, 20 U.S.C. 1401(3). Reasons: It is the Department's view that it is important to clarify how a recipient's Title IX obligations intersect with its obligation to ensure the rights of students with disabilities. The proposed regulations include provisions in §§ 106.8(e) and 106.44(g)(7) that would require a recipient to consider the requirements of Federal disability laws when implementing the Title IX regulations. A definition of a “student with a disability” is necessary for recipients to understand the scope of these two sets of obligations and how they intersect, and thus would strengthen overall enforcement of Title IX. Section 106.2 Definition of “Title IX” Current regulations: Section 106.2(a) defines “Title IX” as “title IX of the Education Amendments of 1972, Pub. L. 92-318, as amended by section 3 of Pub. L. 93-568, 88 Stat. 1855, except sections 904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686.” Proposed regulations: The Department proposes updating this definition to incorporate statutory additions of sections 1687 and 1688 and to simplify its language. Reasons: The current definition omits two sections of Title IX that were added in 1988 and relies on unnecessarily legalistic language. The proposed definition would be a more complete and accurate description of Title IX and it is presented in more accessible language. C. Application Section 106.11 Application Current regulations: Section 106.11 states that, except as provided in this subpart, the Department's Title IX regulations apply to every recipient and its education program or activity that receives Federal financial assistance. The Civil Rights Restoration Act of 1987 amended Title IX to add a definition of “program or activity.” 20 U.S.C. 1687. In 2000, the Department amended the Title IX regulations to incorporate the statutory definition of “program or activity” at 34 CFR 106.2(h), which provides that a recipient's education program or activity encompasses all of its operations. 65 FR 68050 (Nov. 13, 2000). Current § 106.44(a) defines an “education program or activity” for purposes of §§ 106.30, 106.44, and 106.45 to include locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. Current §§ 106.8(d) and 106.44(a) limit the geographic scope of a recipient's obligation to address sexual harassment to incidents that occurred against a person while that person was in the United States. In addition, current § 106.45(b)(3)(i) requires a recipient to dismiss a formal complaint of sexual harassment if the alleged conduct did not occur against a person while that person was in the United States. Proposed regulations: The Department proposes amending § 106.11, to clarify that Title IX's prohibition on sex discrimination applies to all sex discrimination occurring both under a recipient's education program or activity and in the United States. The proposed regulations would make clear that conduct that occurs under a recipient's education program or activity includes but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution, which is consistent with current § 106.44(a), and conduct that is subject to the recipient's disciplinary authority. It would also specify that a recipient has an obligation to address a sex-based hostile environment under its education program or activity, even if sex-based harassment contributing to that hostile environment occurred outside the recipient's education program or activity or outside the United States. Finally, the Department proposes eliminating the language in current § 106.44(a) that defines “education program or activity” for purposes of sexual harassment to ensure that the term is applied uniformly throughout the regulations for all forms of sex discrimination, including sex-based harassment. Reasons: Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a). This statutory prohibition limits Title IX's application in two ways: the sex discrimination must occur (1) under the recipient's program or activity, and (2) against a person in the United States. The current regulations require a recipient to dismiss a formal complaint of sexual harassment and not use its Title IX grievance process if the conduct did not occur against a person in the United States, even if that conduct contributes to a hostile environment in the recipient's education program or activity in the United States. After receiving input from stakeholders, the Department has reconsidered its prior interpretation of Title IX's statutory language from the 2020 amendments and proposes revising the current regulations to more clearly and completely describe the circumstances in which Title IX applies. In proposed § 106.11, consistent with 20 U.S.C. 1687, the Department would clarify that an education program or activity includes all of the recipient's operations and that conduct occurring under a recipient's education program or activity would include but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution and conduct that is “under the school's disciplinary authority.” See Davis, 526 U.S. at 646-47 (concluding “that recipients of federal funding may be liable for `subject[ing]' their students to discrimination . . . [for] acts of student-on-student sexual harassment [when] the harasser is under the school's disciplinary authority”). Proposed § 106.11 would also recognize that even when an act of sex-based harassment occurs outside the recipient's education program or activity, or outside the United States, that conduct could contribute to a hostile environment based on sex under the recipient's education program or activity, or otherwise exclude a person from participation in, deny them the benefits of, or subject them to sex discrimination under the recipient's education program or activity in the United States. If such sex discrimination occurs, the recipient must address it. Obligation to address conduct occurring within the school's operations. Under the proposed regulations, consistent with the current regulations, a recipient's education program or activity would include buildings or locations that are part of the school's operations, including online learning platforms. 34 CFR 106.44(a). A recipient's education program or activity would also include all of its academic and other classes, extracurricular activities, athletics programs, and other aspects of the recipient's education program or activity, whether those programs or activities take place in the facilities of the recipient, via computer and internet networks, on digital platforms, with computer hardware or software owned, operated by, or used in the operations of the recipient, on a school bus, at a class or training program sponsored by the recipient at another location, or elsewhere. The Department's discussion in the preamble to the 2020 amendments regarding Title IX and online platforms used by a recipient would thus remain relevant under the proposed regulations. Specifically, in the preamble to the 2020 amendments the Department explained that the operations of a recipient “may certainly include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the recipient.” 85 FR 30202. The Department further explained that “the factual circumstances of online harassment must be analyzed to determine if it occurred in an education program or activity.” Id. The Department would maintain the same position in the proposed regulations as stated in the preamble to the current regulations: The definition of “program or activity” in the Title IX regulations does not create a distinction between sex discrimination occurring in person and that occurring online. Id. at 30203. Under the proposed regulations, consistent with the current regulations, conduct occurring under a recipient's education program or activity would extend to conduct in off-campus settings that are operated or overseen by the school ( e.g., a school field trip) and off-campus buildings owned or controlled by a student organization officially recognized by a postsecondary institution. Id.; 85 FR 30196-98; see, e.g., Farmer v. Kan. State Univ., 16-cv-2256-JAR-GEB, 2017 WL 980460, at *7-10 (D. Kan. Mar. 14, 2017) (finding plaintiff sufficiently alleged that Kansas State University exercised substantial control over off-campus assault at a fraternity because the fraternity was subject to oversight by University and University had the authority to discipline fraternity), aff'd on other grounds, 918 F.3d 1094 (10th Cir. 2019); Weckhorst v. Kan. State Univ., 241 F. Supp. 3d 1154, 1166-70 (D. Kan. 2017), aff'd sub nom. Farmer v. Kan. State Univ., 918 F.3d 1094 (10th Cir. 2019) (holding plaintiff sufficiently alleged that Kansas State University exercised substantial control over off-campus assault that occurred during a fraternity event at a local park because the University subjected the fraternity to oversight and had the authority to discipline fraternity); S.C. v. Metro. Gov't of Nashville, No. 17-1098, 2022 WL 127978, *25 (M.D. Tenn. Jan. 12, 2022), appeal pending (noting that the Court's “formulation of potential liability for peer harassment notably shied away from drawing a hard line based on geography, focusing instead on whether the harassment was taking place `under' an `operation' of the funding recipient” (citing Davis, 526 U.S. at 646)). Obligation to address conduct that occurs under the school's disciplinary authority. Conduct occurring under a recipient's education program or activity would also include other settings in the United States but off campus or off school grounds when the conduct “is under the school's disciplinary authority.” Davis, 526 U.S. at 647; cf. Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2045 (2021) (noting a school's “regulatory interests remain significant in some off-campus circumstances” and “several types of off-campus behavior . . . may call for school regulation,” including “serious or severe bullying or harassment targeting particular individuals [and] threats aimed at teachers or other students”). Thus, the proposed regulations would adopt the Department's recognition in the preamble to the 2020 amendments that a teacher's sexual harassment of a student is “likely” to constitute sexual harassment “in the program” of the school even if the harassment occurs off campus or off school grounds and outside a school-sponsored activity. 85 FR 30200. In addition, some schools have codes of conduct that address interactions, separate from discrimination, between students that occur off campus. If a school has such a code of conduct, then it may not disclaim responsibility for addressing sex discrimination that occurs in a similar context. If the school responds when, for instance, one student steals from another at an off-campus location, or when a student engages in a nonsexual assault of another student at an off-campus location, it must likewise respond when a student engages in sexual assault or sex-based harassment of another student off campus. Thus, the proposed rule would make clear, as in the 2020 amendments, that whether conduct falls under a recipient's education program or activity for purposes of Title IX is not contingent on the geographic location of the underlying conduct, but rather on whether the recipient exercises disciplinary authority over the respondent's conduct in that context. See, e.g., DeGroote v. Ariz. Bd. of Regents, No. CV-18-00310-PHX-SRB, 2020 WL 10357074, at *8 (D. Ariz. Feb. 7, 2020) (finding a school exercised control over harasser and context of harassment, in part, because the school's code of conduct addressed off-campus behavior and because the location of the initial harassment “is not dispositive”). Obligation to address hostile environment created by conduct outside of the education program or activity. Proposed § 106.11 would also clarify that Title IX obligates a recipient to address a hostile environment occurring within the recipient's education program or activity, even if the underlying sex-based harassment contributing to the hostile environment does not occur in the recipient's education program or activity or occurs outside the United States. During OCR's numerous listening sessions and in the June 2021 Title IX Public Hearing, many stakeholders indicated that the current regulations could be interpreted to exclude conduct that occurs off campus or off school grounds outside of a recipient's education program or activity, or that occurs in a program or activity but outside the United States, even when that conduct creates a hostile environment based on sex in an education program or activity within the United States. They further asserted that Title IX requires a recipient to address a hostile environment based on sex in the recipient's education program or activity, regardless of whether the sex-based harassment contributing to that hostile environment occurred elsewhere. The Department takes seriously these comments and agrees that clarification is needed. After considering this issue and reweighing the facts and circumstances, including this feedback, the Department proposes regulatory language to enforce the full scope of Title IX's nondiscrimination mandate and ensure that recipients provide a nondiscriminatory environment for all students within their programs and activities in the United States. Proposed § 106.11 would clarify that Title IX's prohibition on sex discrimination would apply to a hostile environment under a recipient's education program or activity, even if sex-based harassment contributing to such a hostile environment occurred outside of the recipient's education program or activity or occurred within an education program or activity but outside of the United States. In the preamble to the 2020 amendments, the Department explained that in the context of a private lawsuit for monetary damages, the Supreme Court applied Title IX's program or activity language to “ `limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.' ” 85 FR 30196 (quoting Davis, 526 U.S. at 645). The Department acknowledged that the Court's decision was in the context of a lawsuit for monetary damages and not in the administrative enforcement context, but stated that because the Department, like the Court, is constrained by the text of the statute, including the definition of “program or activity,” a similar analysis is appropriate in the administrative enforcement context. Id. at 30196 n.863. The Department recognizes that some Federal courts in private suits for monetary damages have held a school not liable under Title IX for harassment that occurred outside of the recipient's control. See, e.g., Roe v. St. Louis Univ., 746 F.3d 874, 883-84 (8th Cir. 2014) (holding that there was insufficient evidence alleged to demonstrate that university was deliberately indifferent to plaintiff's allegations of rape by a fellow student in a private residence over which the University exercised no control); Samuelson v. Or. State Univ., 162 F. Supp. 3d 1123, 1132-34 (D. Or. 2016) (finding that plaintiff did not allege facts to demonstrate university had any control over a rape by a non-student at a private apartment for purposes of “pre-assault liability” and dismissing as time-barred plaintiff's allegations of deliberate indifference following her report of the rape to the university). In those cases, however, there were no actionable allegations that the schools were deliberately indifferent to a hostile environment based on sex within the recipient's education program or activity. Indeed, several Federal courts have held that, even for purposes of monetary damages under Davis, Title IX requires recipients to evaluate and address allegations of a hostile environment within a recipient's education program or activity, even when an initial incident of sex-based harassment may have occurred outside of the recipient's education program or activity. See, e.g., Rost v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121 n.1 (10th Cir. 2008) (citing Davis, 526 U.S. at 645) (recognizing that sexual assault occurring in settings outside of the school can create Title IX liability, as long as there is “some nexus between the out-of-school conduct and the school,” but finding that in this case, the district's response to such conduct was not deliberately indifferent); Spencer v. Univ. of N.M. Bd. of Regents, 15-cv-141-MCA-SCY, 2016 WL 10592223, at *6 (D.N.M. Jan. 11, 2016) (concluding that a reasonable jury could find the recipient deliberately indifferent for its failure to address the risk created by the possibility of future encounters between the plaintiff and the men who raped her off campus); L.E. v. Lakeland Joint Sch. Dist. #272, 403 F. Supp. 3d 888, 900-01 (D. Idaho 2019) (finding that the district was responsible for responding to a hostile environment in its education program or activity even where the initial sexual assault occurred outside the school's education program or activity). The Department's current view is that these decisions are correct in reading Davis to require a recipient to address a hostile environment based on sex that exists within its education program or activity, whether or not the initial sex-based harassment or other contributing acts of sex-based harassment may have occurred elsewhere. This is because when the hostile environment exists within a recipient's education program or activity, the recipient exercises substantial control over both the harasser and the context. See Davis, 526 U.S. at 645. A recipient cannot, therefore, sever incidents that happened outside of its education program or activity from any subsequent harassment or resulting hostile environment within the recipient's control. L.E., 403 F. Supp. 3d at 900. To do so would allow “a person” to be “subjected to discrimination under an[ ] education program or activity receiving Federal financial assistance” in violation of Title IX's explicit text. 20 U.S.C. 1681(a). For example, Student A reports that Student B sexually assaulted her while participating in the recipient's study abroad program and both students have now returned to campus in the United States. Student A reports that Student B has been taunting her with sexually suggestive comments about the prior assault since their return to campus. Because of the sexual assault and Student B's continuing conduct, Student A is unable to concentrate or participate fully in her classes and activities where Student B is present. In this scenario, because Student A has alleged a hostile environment based on sex within the recipient's education program or activity within the United States, the recipient would have an obligation to take action to address those allegations. The proposed regulations would require the recipient to provide Student A with appropriate supportive measures and, if the recipient's investigation finds that a hostile environment exists within its education program or activity, take action against Student B after following all applicable grievance procedures. Evaluating whether a hostile environment exists as a result of conduct that is otherwise not covered by Title IX is a fact-specific inquiry. Consistent with Federal case law, when sex-based harassment occurs outside of the United States or outside of a recipient's education program or activity, it will not always result in a hostile environment that is within a recipient's control. The definition of “sex-based harassment” in proposed § 106.2 would set out the minimum factors that must be considered in determining whether a hostile environment has been created in a recipient's education program or activity. These factors would also apply when determining whether sex-based harassment that occurred outside of a recipient's education program or activity has created a sex-based hostile environment in a recipient's education program or activity. A recipient should also consider in its fact-specific inquiry whether a complainant's encounters with an alleged respondent in the recipient's education program or activity give rise to a hostile environment, even when the incidents of harassment occurred outside of the recipient's education program or activity. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1296-98 (11th Cir. 2007) (reasoning that Title IX claim could arise when a student withdrew from university rather than risk encountering her alleged perpetrators on campus when school waited months before taking action in response to her complaint); Kinsman v. Fla. State Univ. Bd. of Trustees, No. 4:15cv235-MW/CAS, 2015 WL 11110848, at *4 (N.D. Fla. Aug. 12, 2015) (holding that the effect of sex-based harassment does not end with the cessation of the harassing conduct, particularly when the complainant and respondent both remain at the institution and agreeing “that the possibility of further encounters `between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided by a university.' ” (citation omitted)); Spencer, 2016 WL 10592223, at *6 (“ `[A] reasonable jury [may] conclude that further encounters, of any sort, between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided by a university.' ” (quoting Kelly v. Yale Univ., No. 3:01-CV-1591, 2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003))); Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 444 (D. Conn. 2006) (holding that the “constant potential for interactions” between a harasser and rape victim due to the harasser's presence on campus could constitute sex-based harassment); Crandell v. N.Y. Coll. of Osteopathic Med., 87 F. Supp. 2d 304, 316 (S.D.N.Y. 2000) (harassment by former professor at off-campus internship required Title IX response by school when “the presence of the perpetrator at the institution would be expected to create a hostile environment”). In evaluating whether there is a hostile environment, courts have reiterated that recipients must adopt a “ `totality of the circumstances' approach that rejects the disaggregation of the allegations and requires only that the alleged incidents cumulatively have resulted in the creation of a hostile environment.” Crandell, 87 F. Supp. 2d at 319. In the circumstances in which sex-based harassment occurs outside a recipient's education program or activity or outside the United States, and the harassment does not contribute to a hostile environment within the recipient's education program or activity, proposed § 106.11 would clarify that Title IX does not apply. For example, Student C reports she was sexually assaulted in a nightclub off campus by a third party who does not live in the area. Student C is now experiencing emotional distress and is unable to attend classes. Because the assault occurred off campus, and the respondent is not a representative of the recipient or otherwise a person over whom the recipient exercises disciplinary authority, the assault did not occur within the recipient's education program or activity. And because Student C is not alleging a hostile environment within the education program or activity due to the respondent's presence or additional harassment she is experiencing, proposed § 106.11 clarifies that a recipient's Title IX obligations would not be implicated. The recipient would still be encouraged to provide supportive measures to Student C and refer Student C to local law enforcement. Finally, the proposed regulations would also recognize that when sex discrimination other than sex-based harassment occurs outside of a recipient's education program or activity, or outside of the United States, but causes sex discrimination within the recipient's education program or activity, Title IX would require the recipient to address this sex discrimination as well. For example, a student in a recipient's study abroad program complains that he was subjected to different treatment in grading based on sex by a professor and, as a result, the student lost his scholarship. Under proposed § 106.11, the recipient would be required to address the complaint because, although the different treatment in grading occurred outside of the United States, that conduct caused discrimination based on sex in the recipient's education program in the United States. This response would include compliance with applicable grievance procedures, including investigating the complaint, and, if discrimination is found, taking steps to remedy the resulting discrimination. For instance, the recipient may remove the discriminatory grade from the student's transcript and reinstate the scholarship. In addition, there may be circumstances in which the recipient itself is alleged to have engaged in sex discrimination in its program outside the United States. When such conduct causes sex discrimination in its education program or activity within the United States, the recipient must address it. D. The Effect of Other Requirements and Preservation of Rights Section 106.6(e) Effect of Section 444 of General Education Provisions Act (GEPA)/Family Educational Rights and Privacy Act (FERPA) Current regulations: Current § 106.6(e) states that the obligation to comply with the regulations in part 106 is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99. Proposed regulations: No proposed change. Reasons: The Family Educational Rights and Privacy Act (FERPA) protects the privacy of students' education records and personally identifiable information contained therein. Privacy is an important factor that the Department carefully considered in promulgating the proposed regulations and recipients will need to consider this factor in implementing them. To the extent that there may be circumstances in which a conflict exists between a recipient's obligations under Title IX and under FERPA, the Department would maintain the provision in § 106.6(e) that expressly states that the obligation to comply with the Title IX regulations is not obviated or alleviated by the FERPA statute or regulations. 85 FR 30424. As the General Education Provisions Act (GEPA) provides, nothing in that statute shall be construed to “affect the applicability of title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq. ], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq. ], title V of the Rehabilitation Act of 1973 [29 U.S.C. 791 et seq. ], the Age Discrimination Act [42 U.S.C. 6101 et seq. ], or other statutes prohibiting discrimination, to any applicable program.” 20 U.S.C. 1221(d). The Department has long interpreted this provision to mean that “FERPA continues to apply in the context of Title IX enforcement, but if there is a direct conflict between the requirements of FERPA and the requirements of Title IX, such that enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions.” 85 FR 30424. Some aspects of the proposed regulations address areas in which recipients may also have obligations under FERPA or its implementing regulations, 34 CFR part 99, for example, provisions regarding the exercise of rights by parents, guardians, or other authorized legal representatives at proposed § 106.6(g); disclosure of supportive measures at proposed § 106.44(g)(5); consolidation of complaints at proposed § 106.45(e); a description of the relevant evidence at proposed § 106.45(f)(4); access to an investigative report or relevant and not otherwise impermissible evidence at proposed § 106.46(e)(6); and notification of the determination of a sex discrimination complaint at proposed §§ 106.45(h)(2) and 106.46(h)(1). The Department is seeking comments on the intersection between the proposed Title IX regulations and FERPA, any challenges that recipients may face as a result of the intersection between the two laws, and any steps the Department might take to address those challenges in the Title IX regulations. Section 106.6(g) Exercise of Rights by Parents, Guardians, or Other Authorized Legal Representatives Current regulations: Section 106.6(g) states that the Department's Title IX regulations must not be read in derogation of any legal right of a parent or guardian to act on behalf of a complainant, respondent, party, or other individual, subject to the obligation to comply with the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g. This right to act on behalf of another includes but is not limited to, filing a formal complaint. Proposed regulations: The Department proposes clarifying in this section that an authorized legal representative has the right to act on behalf of a complainant, respondent, or other person, subject to proposed § 106.6(e), including but not limited to making a complaint through the recipient's grievance procedures for complaints of sex discrimination, as would a parent or guardian. Reasons: Upon reexamining this provision, the Department proposes adding to the current regulations the term “authorized legal representative” to fill a gap in the existing regulations that was brought to the Department's attention in listening sessions with a wide array of stakeholders, including students, parents, educators, school officials, and advocacy organizations. Throughout the United States, an individual in the role of an educational representative or another similar role is legally authorized to act on behalf of certain youth in out-of-home care but is not necessarily deemed a parent or guardian. The Department proposes adding the term “authorized legal representative” to § 106.6(g), recognizing that although terminology may differ across States and contexts, there is a critical need to empower these individuals to act on behalf of another person, consistent with their legal authority, in matters addressed by the proposed regulations. Section 106.6(h) and 106.6(b) Preemptive Effect Current regulations: Section 106.6(h) states that, to the extent there is any conflict between State or local law and the Title IX regulations at §§ 106.30, 106.44, and 106.45, the obligation to comply with those sections is not obviated or alleviated by any State or local law. Current § 106.6(b) states that the obligation to comply with part 106 is not obviated or alleviated by any State or local law or other requirement which would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession. Proposed regulations: The Department proposes eliminating § 106.6(h) entirely and simplifying § 106.6(b) to make clear that all of the Title IX regulations would preempt State or local law. Proposed § 106.6(b) states that a recipient's obligation to comply with part 106 is not obviated or alleviated by any State or local law or other requirement, and that nothing in the Department's regulations would preempt a State or local law that does not conflict with these regulations and that provides greater protections against sex discrimination. Reasons: The Department wants to ensure recipients understand that their obligations to comply with the Department's Title IX regulations are not dependent or conditioned on other obligations recipients may be subject to in their respective States or localities. Current § 106.6(b) states that this preemptive effect applies only with respect to “any State or local law or other requirement which would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession.” The Department wants to ensure that recipients are aware that the preemptive effect of these regulations are not just limited to the circumstances listed in § 106.6(b), nor the provisions specifically excerpted in § 106.6(h). The proposed regulations would delete the language limiting the provision to eligibility to practice any occupation or profession, making clear in a simple comprehensive statement that the Title IX regulations preempt any State or local law with which there is a conflict. The proposed change would also avoid the duplication that may exist under separate but overlapping provisions. In addition, proposed § 106.6(b) would clarify that nothing in the Department's proposed regulations would preempt a State or local law that provides greater protections to students and does not conflict with these regulations. This clarification would ensure that the proposed regulations appropriately cover the full scope of Title IX while not extending further than the Department's authority to promulgate regulations to effectuate Title IX. E. Procedures Section 106.81 Procedures Current regulations: Section 106.81 provides that the procedural provisions applicable to Title VI of the Civil Rights Act of 1964 are adopted and incorporated into the Title IX regulations. Current § 106.81 states that these procedures may be found at 34 CFR 100.6 through 100.11 and 34 CFR part 101. Finally, current § 106.81 states that the definitions in current § 106.30 do not apply to 34 CFR 100.6 through 100.11 and 34 CFR part 101. Proposed regulations: The Department proposes removing the final sentence of current § 106.81, which states that the definitions in current § 106.30 do not apply to 34 CFR 100.6 through 100.11 and 34 CFR part 101. Reasons: As explained in greater detail in the discussion of Definitions in the Provisions of General Applicability (Section I.B), the Department proposes removing current § 106.30 in its entirety. Accordingly, the Department also proposes removing the statement that the definitions in current § 106.30 do not apply to the Title VI regulations. II. Recipient's Obligation to Operate Its Education Program or Activity Free From Sex Discrimination Statute: Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a). The Department has the authority to regulate with regard to discrimination on the basis of sex in education programs or activities receiving Federal financial assistance, specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 and 3474. A. Sex Discrimination Generally As discussed in the Background section, the Supreme Court explained in Cannon that the objectives of Title IX are two-fold: first, to “avoid the use of federal resources to support discriminatory practices,” and second, to “provide individual citizens effective protection against those practices.” 441 U.S. at 704. The Court also clarified the broad scope of Title IX in North Haven Board of Education, stating: “[I]f we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.” 456 U.S. at 521 (citations and internal alterations omitted). These cases, together with the text of Title IX, make clear that Title IX's prohibition on sex discrimination imposes a legal duty on every covered recipient of Federal funds to operate its education program or activity free from sex discrimination. This legal duty accordingly requires a recipient to respond promptly and equitably when sex discrimination may be taking place within its education program or activity. B. Sex-Based Harassment 1. OCR's Guidance and Supreme Court Precedent on Title IX's Application to Sexual Harassment The Supreme Court and the Department have long interpreted Title IX to prohibit sexual harassment. In 1981, OCR Director for Litigation, Enforcement and Policy Service Antonio J. Califa issued a policy memorandum to all OCR regional directors advising them that “[s]exual harassment consists of verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent of a recipient that denies, limits, provides different, or conditions the provision of aid, benefits, services or treatment protected under Title IX.” See 1988 Sexual Harassment Pamphlet at 2 (quoting OCR Policy Memorandum, Aug. 31, 1981, from Antonio J. Califa, Director for Litigation, Enforcement and Policy Service, OCR to Regional Civil Rights Directors), https://files.eric.ed.gov/fulltext/ED330265.pdf . Then in 1988, OCR issued a pamphlet titled Sexual Harassment: It's Not Academic, which characterized the 1981 memorandum as having “reaffirmed” OCR's jurisdiction: “In an August 1981 policy memorandum, the Office for Civil Rights (OCR) of the U.S. Department of Education reaffirmed its jurisdiction over sexual harassment complaints under Title IX . . . .” Id. The Supreme Court addressed Title IX's coverage of sexual harassment for the first time in 1992, when it confirmed that a school district could be held liable for monetary damages in cases involving a teacher sexually harassing a student. Franklin, 503 U.S. 60. The Court noted that prior to filing her lawsuit, the plaintiff filed a complaint with OCR in August 1988 in which OCR concluded that the school district violated Franklin's Title IX rights by subjecting her to sexual harassment and by interfering with her right to complain. Id. at 64 n.3. By allowing monetary damages as a remedy, the Court signaled approval for more robust enforcement of Title IX to cover sexual harassment. See id. at 76 (“[I]n this case the equitable remedies suggested by respondent and the Federal Government are clearly inadequate.”). Following Franklin and beginning in 1997, OCR issued a series of documents to provide additional guidance to recipients, students, and others regarding Title IX's prohibition on sexual harassment. See, e.g., 1997 Sexual Harassment Guidance; 2001 Revised Sexual Harassment Guidance; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter from Assistant Secretary Stephanie Monroe on Sexual Harassment (Jan. 25, 2006) (rescinded upon effective date of 2020 amendments, Aug. 14, 2020) https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html ; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011) (rescinded in 2017) (2011 Dear Colleague Letter on Sexual Violence), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf ; 2014 Q&A on Sexual Violence; U.S. Dep't of Educ., Office for Civil Rights, Q&A on Campus Sexual Misconduct (Sept. 22, 2017) (rescinded in 2020) (2017 Q&A on Campus Sexual Misconduct), https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf . OCR published the 1997 Sexual Harassment Guidance in the Federal Register for public comment after “extensive consultation with interested parties,” including “students, teachers, school administrators, and researchers.” 1997 Sexual Harassment Guidance, 62 FR 12035. OCR set out the circumstances under which sexual harassment of students is a form of prohibited discrimination under Title IX, explaining that sexual harassment occurs when “a school employee explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual [conduct].” Id. at 12038. OCR further explained that under Title IX, hostile environment harassment requires that the sexually harassing conduct be “sufficiently severe, persistent or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.” Id. OCR also discussed what constitutes notice of sexual harassment of students by its employees, students, or third parties and how a school should respond upon receiving notice of sexual harassment. Id. at 12039, 12042-43. OCR rooted this interpretation in Supreme C [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-13734. Public record. Not legal advice.