The Department of Education yesterday, in a 1577-page Release (full text), issued its final rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide:
§ 106.10 Scope. Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
§ 106.31 Education programs or activities.... (a)(2) In the limited circumstances in which Title IX or this part permits different treatment or separation on the basis of sex, a recipient must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm.... Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.
In its Release, DOE said in part:
With respect to religious educational institutions, the Department agrees with commenters that §§ 106.10 and 106.31(a)(2) do not apply to an educational institution that is controlled by a religious organization to the extent that the provisions’ application would not be consistent with the religious tenets of such organization. 20 U.S.C. 1681(a)(3). If an institution wishes to claim an exemption, its highest-ranking official may submit a written statement to the Assistant Secretary for Civil Rights, identifying the provisions of Title IX that conflict with a specific tenet of the controlling religious organization. 34 CFR 106.12(b).
The Department notes that that the religious exemption in Title IX applies to an “educational institution” or other “entity’ that is controlled by a religious organization, 20 U.S.C. 1681(a)(3); 1687(4); it does not address an individual student or employee’s exercise of their religious beliefs. As commenters also noted, however, RFRA provides that the Federal government “shall not substantially burden a person’s exercise of religion” unless the government “demonstrates that application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. 2000bb–1.
... OCR considers RFRA’s requirements when it evaluates a recipient’s compliance with Title IX. An individual may also inform the Department of a burden or potential burden under RFRA by sending an email to RFRA@ed.gov....
With regard to commenters’ concerns related to the Free Speech and Free Exercise Clauses of the First Amendment, § 106.6(d) explicitly states that nothing in the regulations requires a recipient to restrict rights protected under the First Amendment or other constitutional provisions. The Department, likewise, must act in accordance with the U.S. Constitution.
The new rules also make other changes, including changes in grievance procedures. NPR reports on the rule changes.
UPDATE: On April 30, suit was filed by a Louisiana school district challenging the extension of Title IX to discrimination on the basis of gender identity. (Full text of complaint in Rapides Parish School Board v. U.S. Department of Education, (WD LA, filed 4/30/2024)).
