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Politics

Education Department sends final Title IX rule on sexual misconduct to OMB for approval

“The Biden-Harris Administration is committed to ensuring all students are guaranteed an educational environment free from discrimination on the basis of sex,” an Education Department spokesperson said in a statement. “The Department of Education has taken the next step to advance a rule, first proposed in 2022, that strengthens protections for students from sexual harassment and for LGBTQI+ students.”

The move comes amid
monthslong speculation
over whether the Education Department will blow through a third self-imposed deadline on finalizing the part of Title IX that covers sexual misconduct and codifies protections for gender identity. The agency is also facing a separate deadline for a section overseeing athletics eligibility where it proposed making sweeping bans on transgender students’ sports participation illegal.

While the unified agenda initially listed March of 2024 as the target date for both rules, the department said it is still reviewing the athletics eligibility rule. Timing on when the final sexual misconduct rule will be released is now up to the Office of Information and Regulatory Affairs. OIRA review is limited to 90 days,
according to the website
, but can sometimes be extended. There is no minimum time for review.

Breaking down the timeline: Department officials were initially supposed to finalize the regulation on sexual misconduct and gender identity in May of 2023, but delayed it to October, citing the need to comb through more than 240,000 public comments received on the proposed rule. The rule was then delayed again to March of 2024.

Education Secretary Miguel Cardona first
unveiled his plan
to codify safeguards for transgender students in June 2022. That version of the rule proposed banning “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.”

Cardona later in April of 2023 released a rule to bolster transgender students’ rights to play on sports teams but with limitations.
The proposal
was met with more than 150,000 comments. It aims to bar schools from adopting or enforcing policies that categorically ban transgender students from participating on teams consistent with their gender identity. At least 24 states have laws or regulations banning transgender students from participating in sports consistent with their gender identity,
according to the Movement Advancement Project
.

“The Department is still reviewing a second rule related to athletics, which was first proposed nine months after the first rule, and which received 150,000 public comments which by law must be carefully considered,” the department spokesperson said.

The Education Department emphasized that under its proposed rule, “elementary school students would generally be able to participate on school sports teams consistent with their gender identity where considerations may be different for competitive high school and college teams.”

Department officials, however, included the caveat that “in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.”

Michael Stratford contributed to this report.

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