**AN UPDATE  ON THE RULEMAKING PROCESS FOR TITLE IX**

##### **February 18, 2022**

 

Yesterday,  the Department of Education sent  the draft of our proposed amendments  to the Department’s regulations implementing Title IX of the Education  Amendments of 1972—the law that prohibits all forms of sex discrimination in  education programs and activities that receive federal funding—to the Office of  Information and Regulatory Affairs (OIRA), the part of the Office of Management  and Budget responsible for coordinating the review of all Executive Branch  regulations. 

Our  submission of the draft amendments, known as a Notice of Proposed Rulemaking,  or NPRM, is the next, important, step in the Department’s effort to advance the  priorities set out in President  Biden’s executive orders on guaranteeing all students an educational environment free from sex  discrimination, including sexual violence,  and preventing and combating discrimination based on gender identity and  sexual orientation. As President Biden stated, “all  students should be guaranteed an educational environment free from  discrimination on the basis of sex, which encompasses sexual violence, and  including discrimination on the basis of sexual orientation or gender  identity.” Within the Office for Civil Rights, we are guided by those words;  they are at the heart of the mission of our office, and we take seriously our  charge to fulfill the promise embodied in Federal civil rights laws.

At this  stage of the rulemaking process, the draft NPRM remains internal to the federal  government and is not yet available for public viewing. OIRA coordinates an interagency  Executive Branch review of the draft. The process, known as a 12866 review,  implements Executive  Order 12866, issued in 1993 to ensure an effective rulemaking process across  federal agencies. The process includes an analysis of the costs and benefits of  proposed rules and is designed to promote accountability to the public. For  more on OIRA review of agency proposed rules, please see the FAQs on  OIRA’s website.

In  addition to OIRA’s coordinated review, the NPRM draft will also be reviewed by the  Department of Justice (DOJ), which has responsibility under Executive  Order 12250 for reviewing federal agencies’ proposed rules related to civil  rights, including proposed rules that would prohibit discriminatory practices  on certain bases, including sex, in programs and activities receiving federal  funds. For more on this review, please see DOJ’s  website. 

Following these  review processes, the Department anticipates publishing the NPRM in the Federal  Register, at which point the public will have the opportunity to comment on the  proposed regulations and preamble. We look forward to sharing more information  about the public comment process at the time of publication. 

While  the proposed amendments to the Title IX regulations undergo the processes described  above, OCR continues active enforcement of Title IX and its implementing  regulations. As we have  noted, however, OCR has ceased enforcement of the regulatory  requirement in 34 C.F.R. § 106.45(b)(6)(i) regarding the prohibition against relying  on statements not subject to cross-examination, following a ruling from a  Federal district court vacating that requirement. *Victim Rights Law Center et al. v. Cardona*, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), *appeals  pending*(1st Cir.).

Again, this submission is part of our  comprehensive commitment to ensure that schools are providing students with  educational environments free from sex discrimination, including sexual  violence and discrimination based on sexual orientation and gender  identity— it is one step of  many taken and more to come.

For more  on the Department’s efforts to ensure implementation of Title IX’s prohibition  on sex discrimination in federally funded education programs and activities,  please see OCR’s blog post on Our  Commitment to Education Environments Free From Sex-Based Harassment, Including  Sexual Violence.  

Catherine E. Lhamon              Assistant Secretary for Civil Rights              U.S. Department of Education

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  Last Modified: 02/18/2022