ACLU Draws Some Praise for Its Comment Regarding Proposed Title IX Rule

Sep 23, 2022

The American Civil Liberties Union submitted its public comment on September 12, in response to the U.S. Department of Education’s proposed regulations concerning Title IX. 

In June of 2022, the DOE issued a notice of proposed rulemaking governing schools’ obligations under Title IX. The ACLU’s comments in response to the proposal highlighted its support for those regulations that:

  • Make clear that Title IX covers harassment and discrimination based on sexual orientation, gender identity, and sex stereotypes;
  • Draw from a long-standing definition of “sexual harassment” used for other forms of harassment;
  • Require schools to investigate instances of student-on-student harassment or assaults that occur off campus where they affect students’ access to education;
  • Hold institutions accountable when they fail to take prompt and effective action to end sex discrimination;
  • Clarify that parties should be able to access relevant evidence while limiting access to irrelevant or privileged evidence;
  • Clarify that in the limited circumstances where Title IX’s regulations permit differential treatment or separation on the basis of sex, that differential treatment cannot prevent a person who is transgender from participating in an educational program or activity consistent with the person’s gender identity;
  • Clarify the definition of discrimination based on status as a parent to include a range of individuals with caregiving responsibilities for children; and
  • Make clear that the existing prohibition on pregnancy discrimination includes discrimination based on lactation and requires recipients to provide a clean lactation space and break time to express milk for both students and employees.

The ACLU also stated its opposition to provisions in the proposed regulation that:

  • Do not require universities to provide a live hearing and an opportunity for cross-examination where serious sanctions, such as suspension or expulsion, may apply;
  • Permit universities to use the single investigator model, where a single person investigates a complaint and makes the decision about the outcome; and
  • Do not explicitly require institutions to delay Title IX proceedings upon the request of a respondent who faces an imminent or ongoing criminal investigation or prosecution.

In 2020, the Supreme Court ruled in Bostock v. Clayton County, in which the ACLU was counsel, that anti-LGBTQ discrimination is a form of sex discrimination prohibited under Title VII, the workplace nondiscrimination law, according to the ACLU. The proposed regulation, it continued, applies this ruling to the education context, provides that transgender students are not excluded from sex-separated facilities, and specifically cites the harm experienced by transgender students excluded on the basis of their gender identity.

“At a time when some members of Congress, like former Auburn head football coach and now Senator Tommy Tuberville are characterizing the proposed new Title IX rule contemplated by the U.S. Department of Education as an attack, the ACLU’s response to the call for comments offered a balanced review,” said Ellen J. Staurowsky, Ed.D., Professor – Sports Media, of the

Roy H. Park School of Communications at Ithaca College. “It applauds the DOE for clarifying that students experiencing gender-based discrimination because of their sexual orientation and gender identity should benefit from Title IX’s protections.  This has implications for transgender athletes barred from participating on athletic teams because of their gender identity and who have suffered the harms of that kind of gender-based exclusion.

“At the same time, the ACLU raises concerns that the new rule falls short of adequate due process considerations in campus sexual harassment and assault hearings.”