50 Years of Title IX

50 years of Title IX: So Much More Than Sports

By Ashley Rohleder-Webb

I: Introduction

During this 50th anniversary year of the passage of Title IX, there are seemingly endless articles, television specials, and similar tributes being produced. Opinion articles during the NCAA Basketball Tournaments compared to treatment of male and female college athletes and just how much “madness” the NCAA dedicated to the respective tournaments. 1 During warmups for their Final Four game, the University of Kansas men’s basketball team wore shirts with an excerpted line from Title IX on the back, part of Adidas’s “Impossible is Nothing” campaign. 2 ESPN specials are scheduled for this summer. 3 During Super Bowl LVI in February 2022, a special introduction video honoring female athletes aired, leading into the honorary coin toss by Billie Jean King, accompanied by players from girls’ football teams around California. 4

One thing many of the 50th anniversary pieces have in common is a reference to “37 words.” It is even used in the title of a recent documentary produced by WNBA player Candace Parker, Title IX: 37 Words That Changed America. This references the first 37 words of Title IX: “No 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…” 5

In this environment, it is easy to assume that Title IX exclusively addresses gender equality in sports, but while there are provisions that address athletics today, it addresses all forms of sexual discrimination in education in the United States, including sexual harassment and sexual assault. It has changed over these last 50 years, reflecting societal changes and changes in leadership within the U.S. Department of Education through various presidential administrations. 6

II: Pre-Title IX

Before the 1972 passage of Title IX, women and girls had few legal protections in American educational systems. Students of both sexes were prevented from entering classes or programs stereotypically associated with the other sex. 7 Women’s and girls’ admission to colleges and universities was limited to a fraction of their male counterparts, as were scholarship awards. 8 Colleges could have paternalistic rules, like curfews for female students 9 , or require female students to live in dorms while male students had no such requirements. 10 Athletics programs for girls and women, where they existed at all, were not funded at the same levels as sports for boys and men. 11

Title IX’s impact on girls’ and women’s access and achievement in education are demonstrated in college graduation rates. In 1972, women were 41% of college degree earners – associates, bachelors, masters, and doctorate degrees; in 2019, women earned 59% of degrees. 12 Its impact in athletics are undeniable and were noticeable almost immediately. In the 1971-72 school year, 3,960,932 high school students participated in athletics – 294,015 girls and 3,666,917 boys. 13 The next year, 817,073 girls and 3,770,621 boys, and in the 1973-74 school year, 1.300,169 girls and 4,770,125 boys participated. 14 In the 2018-19 school year, 3,402,733 girls and 4,534,758 boys participated. 15 In Kansas, of the 103,363 student athletes that participated in sports during the 2018-19 school year, 42,647 were girls and 60,716 were boys. 16 At the collegiate level, prior to 1981-82, participation data was only collected every five years. 17 In the 1966-67 school year, 15,182 women and 151,918 men participated in National Collegiate Athletic Association (NCAA) sports. 18 In 1971-72, 29,977 women and 170,384 men, and in 1976-77, 62,886 women and 168,136 men participated. 19 In 2017-18, 218,805 women and 281,928 men participated in NCAA sports. 20

The former disparity in educational access impacted students beyond educational attainment and access to sports. In 1930, 14% of those in “the professions” (law, the judiciary, medicine, dentistry, architecture, ministry, science, and university teaching), were women. 21 This percentage dropped to just under 11% in 1950, due to forces like the Great Depression changing employment, and it would take until 1970 for women to again attain that level of representation in the professions. 22 Even into the 21 st Century, many women prefer to pursue traditionally female-dominated careers like elementary teaching, social work and nursing. 23 But, other women with the desire to pursue professional careers were blocked from doing so because quota systems denied them entry to the course of study required to pursue such a career. 24 Since the passage of Title IX and other sex discrimination protections, women’s presence in the professions expanded, rising to 47% in 2014. 25 As the need for two-or-more incomes to support a household or lifestyle has increased, a traditional male breadwinner/female homemaker model is no longer practical. 26 It also does not account for divorced couples or co-parents, increased premarital cohabitation or cohabitation instead of marriage, 27 or LGBTQ+ relationships.

A few women attempted to assert rights against sex-based discrimination even before explicit protections from discrimination on the basis of sex were enacted. Historically, female teachers could be, and were, fired for marrying or becoming pregnant during their contract. The same restrictions did not apply to men. One such case reached the Supreme Court of Kansas in 1932, in a contract dispute, and the plaintiff made public policy arguments. In May 1931, Betty Grimison (then Chaffin) accepted a contract to teach in the 1931-32 school year, to start that September. 28 It contained the stipulation that “the marriage of a lady teacher during the term for which her contract is made automatically abrogates said contract.” 29 In June, Grimison married, and then when the school year began, the school board did not allow her to begin her employment. 30

Grimison argued that the contract did not require her to be unmarried during the term of the contract, just that it did not allow her to marry “during the [school] term for which her contract is made” (emphasis added), thus, the marriage did not invalidate the contract. 31 She also contended that the contractual term was discriminatory toward women. 32 The court found that the provision was not discriminatory, stating

No man and no woman has a right protected by law to be employed as a teacher ... No constitutional, statutory or common-law right of any woman would be infringed if the board refused, for any reason, to employ female teachers. Tender of employment to a woman may be on such terms as the board may deem to be for the best interest of the school, and acceptance of terms by an applicant for employment constitutes waiver of privilege to object to them. 33

In 1973, after passage of Title IX, but before regulations were adopted and effective, a high school student brought a case under the 14 th Amendment Equal Protection Clause. 34 Tammie Gilpin, a Junior at Wichita High School Southeast (Southeast High) joined the all-male cross-country team, under a school district policy that allowed coeducational participation in some non-contact sports. 35 However, after her first interscholastic meet with the team, Gilpin learned the Kansas State High School Activities Association (KSHSAA) handbook forbade boys and girls from participating on the same team in interscholastic competition. 36 Gilpin joined the boys team because Southeast High did not have a girls cross-country team. 37 The court determined that due to its policy allowing coeducational participation, the high school and the school district did not prohibit Gilpin or any other girl’s participation in cross-country, but that KSHSAA’s rule clearly denied her the ability to participate based solely on her sex. 38 The U.S. District Court for the District of Kansas found that KSHSAA’s rule violated Gilpin’s right to equal protection under the Fourteenth Amendment, stating,

Little discussion is required with regard to the importance of the policy upon which this action was premised. This Nation has a long and unfortunate history of sex discrimination manifesting itself in every conceivable field of endeavor. 39 … Accordingly, although more subtle in nature, discrimination on the basis of sex is no less pervasive or invidious than discrimination on the basis of race, alienage, or national origin. 40

At the state level, the Kansas Act Against Discrimination was initially passed in 1953 establishing the Kansas Commission on Civil Rights (now the Kansas Human Rights Commission) and provided protection from racial discrimination in employment practices but did not include enforcement provisions. 41 Five updates between 1961 and 1970 expanded protections to different groups or to different areas of public access, including housing and public accommodation. 42 Protection from discrimination on the basis of sex was added in 1972. 43 While public accommodations fall under the scope of the Kansas Human Rights Commission (KHRC), the Kansas Supreme Court found that it does not have jurisdiction to investigate claims of discrimination in public schools. 44

Under some circumstances, a school may become a place of public accommodation; for example, when a school sponsors an activity open to the general public. It would then wrongfully discriminate if it limited entrance to the event on the basis of race or sex. However, this is not the case when the alleged discriminatory activity centers on educational policies or access to specific schools.” 45

Additionally, the employment protections enforced by the KHRC apply to schools in their role as employers, and its jurisdiction overlaps with that of the U.S. Equal Employment Opportunity Commission. The two agencies cooperate on investigation and enforcement where federal and state laws intersect through a worksharing agreement. 46

The Civil Rights Act of 1964 included protection from sexbased discrimination on its passage. 47 Congressman Howard W. Smith of Virginia introduced an amendment to the bill to include the word “sex,” in Title VII, the employment section of the bill, creating protections from workplace discrimination on the basis of sex, along with those on the basis of race, color, religion, and national origin. 48 While this amendment may have seemed like an effort to create a legal protection for women in the workforce, Congressman Smith had openly opposed racial integration, and some speculated that the amendment was suggested in an effort to cause the bill to fail. 49 Other members of Congress supported the amendment, and the Civil Rights Act was signed into law on July 2, 1964. 50,51 Passage of the Act was only the first step to its protections becoming effective.

On September 24, 1965, President Lyndon Johnson signed Executive Order 11246, the first order to address enforcement of the Civil Rights Act. 52 It empowered the Civil Service Commission to address complaints of discrimination on the basis of race, creed, color, or national origin in Federal employment, and the Department of Labor to address the same in federal contractors. 53 Notably, protection from sex discrimination was not included in the order. 54 It was not until Executive Order 11375, on October 13, 1967, that sex was added to the list of protected classes. 55

Even after passage of the Civil Rights Act, sexually discriminatory employment practices persisted, and female students had no explicit protections at all. In an interview, Bernice Sandler, one of the driving forces behind the creation of Title IX, shared her experience applying for student financial aid as a married woman with children. In that interview, she explained that not only was discrimination on the basis of sex permitted, the disparate treatment was not commonly considered discriminatory. 56 People expected women would ultimately not work after marrying or having children, especially in professional fields or careers that required higher education, so limited admissions in programs or scholarship funds should go to men who would enter and remain in the workforce. 57

Upon completing her doctoral program at the University of Maryland in 1969, while also working as a part-time lecturer, Sandler unsuccessfully applied for one of seven full-time positions in her department. 58 In seeking feedback after this rejection, a colleague told her, “You come on too strong for a woman.” 59 In another job interview, the interviewer explained at length that he would not hire a woman because “they stay home when their children are sick,” despite the fact Sandler’s children were in high school at the time. 60 In yet another, she was told she was “Not really a professional… just a housewife who went back to school.” 61 These rejections led Sandler to research workplace sex-based discrimination, and after learning of Executive Order 11375, she contacted the Office of Federal Contract Compliance in the U.S. Department of Labor. 62 A sympathetic employee explained how Sandler could make a complaint regarding violation of the Order – to his own office. 63 She, with Women’s Equity Action League (WEAL), would file over 250 complaints of sex discrimination against colleges and universities on behalf of women faculty and students. 64

Congresswoman Edith Green learned of the onslaught of complaints through her congressional duties and her position on WEAL’s national advisory board and launched congressional hearings on sex discrimination in higher education in the summer of 1970. 65 Dozens of women, including Sandler, testified in the hearings. Ann Sutherland Harris, then an assistant art history professor at Columbia University testified about experiences of students she interacted with, some with interest in becoming professors. 66 Female students were told they were too “cute” to become professors, or that women were expected to be competent, but “not brilliant or original” in their approach to coursework. 67 One was asked “Why don’t you find a rich husband and give this all up?” 68 Harris called the actions “psychological warfare” waged against women in higher education. 69 Out of the hearings, Congresswoman Green and Congresswoman Patsy Mink coauthored a bill that would become Title IX. 70

The first 37 words of Title IX have been getting a great deal of attention in 2022, but words 38 and 39 - “except that” – were the focus of debates around the bill. Exceptions to the requirement were made for undergraduate admissions at private institutions, for institutions that traditionally and continually admitted students of only one sex, for those in transitioning from single sex to coeducational institutions, to religious institutions to which the requirements would be inconsistent with the tenets of the organization, and military educational institutions and academies. 71 President Richard Nixon signed the bill into law June 23, 1972. 72

III: Title IX 1972-2020

While Title IX became law in 1972, the U.S. Department of Health, Education and Welfare did not issue regulations effectuating it for nearly three years, with regulations taking effect on July 21, 1975. 73,74 In the 47 years since, there have been three changes to the Title IX regulations. 75 In 1980, the regulations were adopted under the newly formed U.S. Department of Education, after the Department of Health, Education and Welfare divided into separate agencies. 76 In 2000, the regulations were modified again, this time through the formal notice-and-comment rulemaking process, initiated October 29, 1999. 77 These modifications reflect changes in law over the preceding 20 years, taking effect on August 30, 2000. 78 In the spring of 2020, the most extensive changes yet were made, following another notice-and-comment process. 79 This time, the notice-and-comment period extended over nearly three years, from announcement in September 2017, until they were released in May 2020 and took effect in August 2020. 80 While the regulations changed little in nearly half a century, enforcement and the scope of the law has been shaped through cases and guidance from the Department of Education.

Where regulations did not define sexual harassment or spell out the extent of remedies available, courts set the parameters of what actions constitute sexual harassment and what sort of remedy was available to those who suffered the harassment. One of the earliest was Cannon v. University of Chicago. Cannon sued the University of Chicago and Northwestern University in 1975 after she was denied admission to their medical schools, claiming she was rejected because she was a woman. 81 The Court of Appeals found that she had no right of action against the schools, as Title IX did not explicitly provide for such an action. 82 In 1979, the Supreme Court overturned that decision, finding that Title IX had all of the conditions needed to find an implied remedy, thus determining that individuals had a private right of action under Title IX. 83

Twenty years after Title IX passed, the Supreme Court held that damages are available in a sex discrimination complaint. Christine Franklin attended North Gwinnett High School in Georgia, and alleged that in the fall of 1986, her sophomore year, a male teacher, Andrew Hill, began sexually harassing her. 84 The harassment began with Hill asking her questions about what sexual acts she had engaged in with her boyfriend and asking her if she would consider having a sexual encounter with an older man, but he eventually forcibly kissed her, and during her junior year, escalated to the point that he entered Franklin’s classes, asked the teacher to excuse her, then took Franklin to an office where he coerced sexual contacts. 85 School officials became aware of the harassment and investigated the allegations related to Franklin, as well as allegations related to other students and teachers, but did not intervene and discouraged Franklin from pursuing criminal charges against the teacher. 86 The teacher resigned in the spring of 1988, Franklin’s junior year, on the condition that the district drop its investigation into complaints against him. 87 Because Franklin had graduated and the teacher resigned, no equitable remedy was available, so the Court determined that monetary damages were the only way for the court to grant relief. 88

Conditions under which schools would be liable for damages developed through a series of cases as well. In the first, Gebser v. Lago Vista Independent School District, the Supreme Court addressed teacher-on-student harassment considerations. 89 In 1991, Alida Gebser was an eight-grade student in a high school book discussion group, led by one of the high school teachers, Frank Waldrop, who frequently made sexually suggestive comments to students in the group. 90 During Gebser’s freshman year, she was assigned to Waldrop’s class, where he also made sexually inappropriate comments around and to students. 91 The teacher and student began to spend time alone together in his classroom, then he visited her home in the spring semester, at which time Gebser and Waldrop began a sexual relationship. 92,93 These interactions continued into the next school year, when they would leave school property and engage in sex acts during the school day, until they were caught by a law enforcement officer in January 1993. 94 Also during the 1992-93 school year, school officials investigated potential sexual harassment involving Waldrop, due to the inappropriate comments he made to students. 95 Gebser and her mother sued the school district and the teacher in November 1993, alleging in part that the school district should have been aware of the sexual abuse, due to the October 1992 investigation. 96

The Court found that Title IX requires a school official with authority to take corrective action to end discriminatory actions must have actual knowledge of the discrimination, and then act with deliberate indifference to the knowledge, and only in those circumstances may a court award damages to a student victim of sexual harassment. 97 In this case, Waldrop had been investigated for making inappropriate sexual comments, which would not reasonably prompt the school official investigating to suspect the teacher was engaged in a sexual relationship with a student. 98

Just one year later, the Court ruled on peer-to-peer sexual harassment between students in Davis v. Monroe County Board of Education. 99 LaShonda Davis’s mother filed a suit alleging that her daughter suffered sexual harassment from a classmate making vulgar comments and motions directed at Davis, and attempting to touch her breasts and genitals on different occasions through the 1992-93 school year, when Davis was in fifth grade. 100 The classmate was eventually charged and pleaded guilty to sexual battery charges. 101 By that time, Davis’s grades had slipped and her father found a suicide note she wrote. 102 Throughout the year, the school did not discipline the student for his behavior or make efforts to separate LaShonda from her harasser. 103 In their suit, the Davises claimed the persistent sexual advances and harassment interfered with Davis’s ability to attend and perform in school and activities, and sought compensatory and punitive damages. 104

The Court first determined that a plaintiff in a student-onstudent harassment case can recover damages, following the reasoning of Franklin and Gebser. 105 Next, the Court had to determine whether a school could be liable for harassment by a third party, as is the case in student-on-student harassment.

The Court ruled that a school could be liable for damages only for its own misconduct but found that while Davis was harassed by a fellow student, a third party for the Court’s purposes, the school’s lack of response to the harassment created the Title IX violation. 106 Applying the standard from Gebser, the Court found that the school acted with deliberate indifference, as the inaction of school officials was “clearly unreasonable under the circumstances.” 107 It expanded the requirements for the award of damages in student-tostudent harassment, recognizing the difference between it and teacher-to-student harassment. For a school to be liable for damages in a student-on-student harassment case, it must be “deliberately indifferent to sexual harassment, of which [it has] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” 108

The eventual definitions of sexual harassment similarly developed out of case law. These characteristics of harassment in Davis – unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education – form the definition of hostile environment sexual harassment under the 2020 Title IX regulations. 109 In the time between Davis and the 2020 regulations, the 1997 and 2001 guidance from the Department of Education used “or” instead of “and,” due to a Title VII case that used “severe or pervasive” in its definition of sexual harassment. 110

Quid pro quo harassment is another form of harassment acknowledged in the 1997 and 2001 Guidance from the Department of Education and is included in the 2020 regulatory definitions. 111 The definition, “An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct,” 112 grew out of language first used in Alexander v. Yale University in 1977, “[I]t is perfectly reasonable to maintain that academic advancement conditioned upon submission to sexual demands constitutes sex discrimination in education.” 113

Considering this history, how did Title IX become characterized as the girls’ and women’s sports law? During debates in Congress before it was made law, there was a discussion about whether Title IX would require schools to allow women to play football or field a girls’/women’s football team, but otherwise, athletics were largely not considered during initial passage of the bill. 114 In 1974, two Congressmen made separate proposals for amendments to Title IX, specifically related to athletics. The Tower Amendment, put forward by Senator John Tower, would add an additional exception to the initial five, to read, “(6) this section shall not apply to an intercollegiate athletic activity insofar as such activity provides to the institution gross receipts or donations required by such institution to support that activity.” 115 This proposed amendment failed in committee, but was replaced by the Javits Amendment. 116 The Javits Amendment required the implementation regulations include “with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports.” Throughout these debates, there was a tension between those trying to alter the version of Title IX that passed, and those who wanted to provide guidelines to the Department of Health, Education and Welfare that would enact the law that was already passed. 117 Similar efforts to limit Title IX’s impact on athletics, or to do away with it all together, continued in earnest through 1976 and 1977. 118

In the midst of these challenges, the Department of Health, Education and Welfare moved forward in creating regulations to address the impact of Title IX, with the initial regulations taking effect on July 21, 1975. 119 In September of that year, the Director of the Office of Civil Rights (OCR), Peter E. Holmes sent a memo to Chief State School Officers, Superintendents of Local Educational Agencies and College and University Presidents describing the regulations and the educational institutions’ responsibilities. 120 In the first year of the regulations, schools were required to complete a self-evaluation of all policies and practices, including those related to athletics, and make changes necessary to comply with Title IX regulations. 121 They were directed to determine the interests and abilities of students in different sports, and determine which sports should have single-sex teams and which could be coeducational. 122 OCR provided factors schools should consider in their self-evaluation of their offerings to determine if the schools were offering equal opportunities. These included 1) the nature and extent of the sports programs to be offered (including the levels of competition, such as varsity, club, etc.); 2) the provision of equipment and supplies; 3) the scheduling of games and practice time; 4) the provision of travel and per diem allowances; 5) the nature and extent of the opportunity to receive coaching and academic tutoring; 6) the assignment and compensation of coaches and tutors; 7) the provision of locker rooms, practice and competitive facilities; 8) the provision of medical and training facilities and services; 9) the provision of housing and dining facilities and services; 10) the nature and extent of publicity. 123 Finally, the letter advised schools on how they could reasonably allocate scholarship funds, so male and female students could benefit, but stressed that specific quotas or proportions were not required by law. 124

OCR offered additional guidance related to intercollegiate athletics in a 1979 Policy Interpretation, after publishing a proposed Policy Interpretation in 1978 and visiting eight universities in the summer of 1979. 125 The Policy Interpretation provided background information, then specific interpretation and direction related to college and university athletic programs, including scholarships, facilities, program offerings, policy requirements, and how the regulations would be enforced. 126 OCR did not provide additional direction or communication to schools related to Title IX until 1996, again related to intercollegiate athletics policies, clarifying a three-prong test it laid out in the 1979 Policy Interpretation. 127

In 1998, following 25 complaints to its office, OCR interpreted the 1979 regulation that required budgets for intercollegiate athletics scholarships be “substantially proportionate” to the participation rates of male and female students. 128 To comply with the requirement, colleges’ and universities’ athletic scholarship budgets must be within one percent of the percentage of participants of each sex. 129 The letter illustrates with this example: Where 60% of the school’s athletes are male, 59%-61% of scholarship funds must be available to men, and the remaining to women. 130 In 2003, yet another guidance document, called “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance,” reinforcing positions and advice given in prior guidance documents. 131

In the last 20 years, guidance has frequently addressed athletics, but there has been more diversity in the issues OCR addresses, including pregnant and parenting students, singlesex education, sexual harassment, and often moving targets related to LGBTQ+ youth. 132 Frequently, this guidance is tied to the changes in law that arose from courts’ interpretation of Title IX.

In the time from 1979 to 1996 that OCR did not release guidance related to Title IX and its application to athletics, courts were addressing the issues. The United States Supreme Court addressed Title IX and athletics in Grove City College v. Bell (then Secretary of Education). Grove City College, a private liberal arts college enrolled a “large number” of students on Basic Educational Opportunity Grants, and the Department of Education considered it a recipient of Federal funds, thus subject to Title IX requirements, and found the school out of compliance in athletics requirements. 133 The school successfully argued that Title IX requirements could only apply to the specific “education program and activities” that received Federal financial assistance, not other programs in the school. 134 However, the Civil Rights Restoration Act of 1987, which became law March 22, 1987 reeled back this interpretation. 135 It defined the “education program or activity” more broadly, in response to Grove City College. 136 It specifically states “any part of which is granted Federal financial assistance,” when describing the reach of Title IX in organizations receiving Federal funds. 137 This definition was adopted into Title IX regulations in the 2000 regulation updates. 138

IV: 2020-present

The past two years have brought sweeping change to Title IX. On May 6, 2020, then-Secretary of Education Betsy DeVos announced the release of new Title IX regulations, concluding the rulemaking process commenced in September 2017. 139 The new regulations were meant to “strengthen protections against sexual harassment, including sexual assault, and restore due process rights for all students.” 140 Regulations related to athletics, employment (except as it relates to sexual harassment), and single-sex education were not modified, only those related to sexual harassment. 141 The new regulations greatly expanded the sections related to sexual harassment, providing a definition of sexual harassment for the first time in Title IX regulation. 142 There are regulations related to what situations trigger a response from the school, others that create and define new terminology, and still others that specify requirements of a formal complaint. 143 The bulk of the new regulations create a grievance process to afford due process to those accused of sexual harassment, broken in to stages, with trained persons completing each stage of the procedure. 144 Concepts long established in case law, like actual knowledge, deliberate indifference, and quid pro quo and hostile environment sexual harassment were codified. 145

The first case challenging the regulations was filed just days after Secretary Devos’s announcement. Know Your Title IX, Council of Parent Attorneys and Advocates, Inc., Girls for Gender Equity, and Stop Sexual Assault in Schools filed a suit on May 14, 2020, claiming the regulations violated the Administrative Procedure Act, claiming the new regulations “‘radically reduced the responsibility of schools to respond to complaints of sexual harassment and assault, creating an arbitrary and wholly unexplained disparity between its treatment of sex discrimination on the one hand, and race, national origin, and disability discrimination on the other.’ (Compl. For. Decl. & Inj. Relief ¶ 1, ECF No. 1.)” 146 This case was quickly dismissed as moot, as there was no case or controversy to decide. 147 Since the new regulations were announced, only one Plaintiff has successfully argued for a change in the regulations.

In Victim Rights Law Ctr. v. Cardona, four victims’ rights organizations and three individual plaintiffs argued that 13 of the provisions in the new regulations violated the Administrative Procedure Act, departing from established Department of Education practice and procedure, and that the 13 provisions were produced through arbitrary and capricious decision making. 148 They also argued that the new rules violated the Equal Protection Clause, as they treat allegations of sexual harassment differently than those of discrimination or harassment on the basis of race, color, national origin, and disability, but this argument was unsuccessful. 149 The United States District Court for the District of Massachusetts found one of the 13 provisions to be arbitrary and capricious, from Section 106.45(b)(6)(i):

If a party or witness does not submit to crossexamination at the live hearing, the decisionmaker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. 150

As the court reasoned,

Neither the Government’s briefing nor this Court’s thorough review of the record indicates that the Department considered or adequately explained why it intended for section 106.45(b)6)(i) to compound with a respondent’s procedural safeguards quickly to render the most vital and ultimate hallmark of the investigation -- the hearing -- a remarkably hollow gesture. …

No attorney worth her salt, recognizing that -- were her client simply not to show up for the hearing -- an ironclad bar would descend, suppressing any inculpatory statements her client might have made to the police or third parties, would hesitate so to advise.

To so carefully balance and craft the respondent’s safeguards, the definitions, the burdens, and the policies in the run-up to the hearing, just to have the prohibition and definition of absentee statements render the hearing a hollow exercise further demonstrates that the Department failed, even implicitly, to consider the consequences from the prohibition and definition of statements.” 151

The court remanded the provision to the Department of Education Office for Civil Rights in its July 28, 2021, ruling. 152 On August 24, 2021, OCR released a letter to students, educators, and other stakeholders, stating that it would immediately cease enforcement of the prohibition against admission of statements that are not subject to cross-examination. 153

As if 2020 had not already brought enough change to Title IX, just weeks after the announcement of new Title IX regulations, the United States Supreme Court issued its decision in the case of Bostock v. Clayton County, Georgia on June 15, 2020. Bostock combined three Title VII cases involving members of the LGBTQ+ community who were terminated from employment due to their sexuality or gender identity, allegedly for those reasons alone. 154 Gerald Bostock worked as a child welfare advocate for Clayton County for over ten years. 155 After joining a recreational gay softball league, people in the community commented on his participation, and shortly thereafter, Bostock was fired for “conduct unbecoming a county employee.” 156 Fellow plaintiff Donald Zarda was terminated from his job as a skydiving instructor for Altitude Express days after mentioning he was gay. 157 He had worked for the New York company for several years. 158 Finally, the third plaintiff, Aimee Stephens was fired from R.G. & G.R. Harris Funeral Homes in Michigan after six years of employment. 159 After her first two years in the position, she was diagnosed with gender dysphoria, and on her provider’s recommendation, intended to begin living as a woman. 160 Before taking a planned vacation, Stephens informed her employer that when she returned from vacation, she would “live and work full-time as a woman,” but was fired soon after. 161

In the decision, Justice Neil Gorsuch summarized the question before the court as follows.

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 162

This “clear answer” is further broken down later in the decision,

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” 163 …

“So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same. 164

The defendant employers argued that if the court ruled in favor of the plaintiffs, the decision would “sweep beyond the Title VII” and be applied to sex-segregated bathrooms, locker rooms, and dressing rooms in an “unsustainable” way. The decision addressed this argument, stating

The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’ … Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.” 165

As has been illustrated, Title VII of the Civil Rights Act of 1964 and Title IX are inextricably linked. As the defendants in Bostock predicted in their arguments, the ruling almost immediately influenced courts and politicians. The Grimm v. Gloucester County School Board case has been working up and down 4 th Circuit Courts since 2015, when Gavin Grimm, a transgender high school student, sued his school for a policy it adopted that required individuals use the restrooms and locker rooms that correspond to their biological sex, or sex assigned at birth, rather than their gender identity. 166 Those with “gender identity issues” were to be provided an “alternative appropriate private facility.” 167

When the policy was adopted, Grimm had already been using the boys bathroom for several weeks, and through the court proceedings shared a number of issues he experienced with the alternative restroom options, including their unavailability during some afterschool events, the additional time it took to go to and from the nurse’s office to use the restroom during the school day, the feelings of alienation as the only student using alternative facilities, and that he experienced health issues from avoiding the restroom altogether during school. 168 In its August 2020 decision, the 4 th Circuit Court of Appeals applied Bostock to this case deciding “…we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex.’” 169 It further found:

Having determined that Grimm was harmed, we finally turn to the heart of the Title IX question in this case: whether the policy unlawfully discriminated against Grimm. Bostock expressly does not answer this “sex-separated restroom” question. … Grimm was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender. Unlike the other boys, he had to use either the girls restroom or a single-stall option. In that sense, he was treated worse than similarly situated students.” 170

The school district appealed the decision, but the Supreme Court denied the petition for certiorari in June 2021. 171

The 9th Circuit took up a similar case, Parents for Privacy v. Barr. It was decided before Bostock and addressed the other side of Grimm. While Grimm asked whether a policy that denies a transgender person access to the bathroom that aligns with their gender identity discriminatory, Parents for Privacy sued Dallas High School in Dallas, Oregon, when the school district adopted policy that allowed a transgender student to use the restroom that aligns with their gender identity. 172 Parents claimed the policy violated Title IX, and denied constitutional rights of students and parents: the right to privacy, the right of parents to direct the education and upbringing of their children, and the right to free exercise of religion. 173 Focusing on the Title IX arguments, Parents claimed the policy violated Title IX by “turning locker rooms, showers, and multi-user restrooms into sexually harassing environments and by forcing students to forgo use of such facilities as the solution to harassment.” 174 The court found that the parents failed to show that the policy created harassment because of sex that was so severe, pervasive, and objectively offensive that it denied students access to the educational program. 175 Parents also argued that Title IX “unequivocally upholds the right to bodily privacy” and that Title IX implementing regulations authorize schools to provide separate, but comparable toilet, locker room, and shower facilities, claiming “Congress intended to preserve distinct privacy facilities based on biological sex.” 176 The court determined that while sex-segregated facilities are allowed, they are not required and that the law does not require such segregation to be by biological sex instead of gender identity. 177 The court upheld the district court’s dismissal of the claims. 178 As in Grimm, Parents for Privacy appealed and were denied a writ of certiorari in December 2020. 179

As 2020 rolled into 2021, and President Biden took office, many asked what impact the change in administrations would have on Title IX, and if it meant the switch might be flipped to quickly rescind or at least stop enforcement of the still new 2020 regulations. 180 Five days after taking office in 2021, President Biden signed Executive Order 13988. 181 It acknowledges the Bostock decision and applies that reasoning to other laws that prohibit sex discrimination. 182 It further requires the head of each federal agency to review existing orders, regulations, guidance, policies, actions to propose changes to protect individuals from sexual discrimination. 183

Weeks later, on March 8, 2021, Biden issued Executive Order 14021, requiring the Secretary of Education “consider taking additional enforcement actions… to account for the significant rates at which students who identify as lesbian, gay, transgender, and queer are subject to sexual harassment” 184 On April 6, 2021, OCR released a Letter to Students, Educators, and other Stakeholders regarding Executive Order 14021, outlining the Department of Education’s plan to effectuate the directive given in the executive order. 185 Then, on June 6 th , 2021, OCR issued a Notice of Interpretation stating that it will apply the Bostock finding that discrimination on the basis of sex encompasses discrimination based on sexual orientation and gender identity in Title IX cases. 186

V: Future of TIX

As demonstrated over the last 50 years, Title IX rules and regulations, and their enforcement are fluid and everchanging. The next changes are already looming on the horizon. Legislative efforts, administrative regulation amendment processes have commenced, and cases are in progress in courts across the country.

Just as the 2020 Title IX regulations were challenged in courts soon after being announced, the Department of Education’s recent Notice of Interpretation prompted legal action as well. On August 30, 2021, 20 states’ attorneys general, including Kansas’s and led by Tennessee’s, sued to prevent the Department of Education from applying the Bostock protections for LGBTQ+ people in Title IX sexual harassment matters, and limiting the interpretation of Bostock to only apply to Title VII cases. 187

Since 2020, eight bills have been filed at the Federal level to modify Title IX; seven were related to transgender students, requiring biological sex or sex assigned at birth to determine which athletic team classification – men/boys or women/ girls – a student can participate in, or what facilities a person can access on school property. 188 The eighth would address schools’ liability in cases of sexual harassment by school agents or employees. 189 Bills regarding transgender students and student athletes have been filed at the state level across the country as well, Kansas included. 190

On December 10, 2021, the Department of Education Assistant Secretary for Civil Rights announced the Department’s intention to issue a notice of proposed rulemaking in April 2022, if not before. 191 In February 2022, the Department sent a draft of its proposed amendments to the Office of Information and Regulatory Affairs (OIRA). 192 After it is reviewed by OIRA, the draft amendments, or Notice of Proposed Rulemaking (NPRM) will be published in the Federal Register and the public comment period will open. 193 As of April 13, 2022, the NPRM has not been released, though many are anxiously awaiting its arrival.

Regardless of what is in the NPRM, what bills become law this year, or how various Title IX cases resolve, the only thing practitioners, students, school employees, parents, and school communities can count on is more change will come.

Ashley Rohleder-Webb graduated from Washburn University School of Law. After starting her career in private practice, she has worked as an attorney at the Kansas Association of School Boards since February 2018. KASB serves school districts across the state and helps Kansas board leadership teams lead, serve and advocate for student success. Title IX is a subject close to her heart, and she is thankful for the doors it opened to her and her colleagues that might have otherwise been closed - from her time as a middle school and high school student-athlete growing up in Gorham, KS, all the way through her graduation from law school, and in her work today.

References

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2. Mike McDaniel, Kansas Sports Title IX Shirts Ahead of Final Four in Honor of 50th Anniversary, Sports Illustrated (April 2, 2022), https://www.si.com/college/2022/04/03/kansasjayhawks-title-ix-warmups-adidas-final-four-villanova.

3. Isabelle Lopez, ESPN Announces Content for Fifty/50 Initiative Celebrating Fifty Years of Title IX with Elements Across the Walt Disney Company, ESPN Press Room (March 8, 2022) https:// espnpressroom.com/us/press-releases/2022/03/fifty50content/.

4. Jordyn White, Super Bowl LVI Coin Toss Will Honor 50th Anniversary of Title IX and Inclusion Across Sports, NFL Communications, https://nflcommunications.com/Pages/ Super-Bowl-LVI-Coin-Toss-Will-Honor-50th-Anniversary-of- Title-IX-and-Inclusion-Across-Sports-.aspx. 5. 20 U.S.C.S. § 1681(a). 6. 20 U.S.C.S. § 1681(a), 34 CFR 106 (2020).

7. Dept. of Justice, Equal Access to Education: Forty Years of Title IX (June 23, 2012), at 2, available at https://www.justice.gov/ sites/default/files/crt/legacy/2012/06/20/titleixreport.pdf. 8. Id. 9. Id. 10. Pat Morrison, Before Title IX Came Along, Many People Didn’t Believe Discrimination Against Women Was A Problem, Los Angeles Times (August 16, 2017), https://www.latimes.com/ opinion/op-ed/la-ol-patt-morrison-asks-bernice-sandler-titleix-sex-discrimination-20170816-htmlstory.html.

11. Erin Blakemore, Women Faced Unchecked Discrimination in U.S. Schools—Until Title IX, National Geographic (March 2, 2022). https://www.nationalgeographic.com/history/article/thehistory-and-legacy-of-title-ix. 12. Id. 13. National Federation of State High School Associations, 2018-19 High School Athletics Participation Survey, at 54, https://www. nfhs.org/media/1020412/2018-19_participation_survey.pdf. 14. Id. 15. Id. 16. Id. at 55. 17. Erin Irick, NCAA Sports Sponsorship and Participation Rates Report, National Collegiate Athletic Association, at 296, https://ncaaorg.s3.amazonaws.com/research/sportpart/ Oct2018RES_2017-18SportsSponsorshipParticipationRatesRe port.pdf. 18. Id. 19. Id. 20. Id. at 79-80. 21. Patsy Parker, Ph.D., The Historical Role of Women in Higher Education, 5 Admin. Issues J. 3, Spring 2015, at 3-4, available at https://files.eric.ed.gov/fulltext/EJ1062478.pdf. 22. Id. 23. Id. at 4-5. 24. Id. 25. Id. at 5. 26. Id. 27. Id. 28. Grimison v. Bd. of Educ., 136 Kan. 511, 16 P.2d 492 (1932). 29. Id. at 512. 30. Id. at 512. 31. Id. at 512-513. 32. Id. 33. Id. at 512-513. 34. Gilpin v. Kan. State High Sch. Activities Ass’n, 377 F. Supp. 1233,

1236 (D. Kan. 1973). 35. Id. 36. Id. 37. Id. 38. Id. at 1236-1237. 39. Id. at 1250. 40. Id. at 1251. 41. KHRC Statute Book, Kan. Human Rights Comm., July 1, 2012, at 4-6, http://www.khrc.net/ KHRCStatuteBookUpdatedEffective07-2009.pdf. 42. Id. 43. Id. 44. Kan Comm’n. on Civil Rights v. Topeka Unified School Dist., 243

Kan. 137, 755 P.2d 539 (1988) 45. Id. at 144. 46. Worksharing Agreement Between KHRC and EEOC, available at http://www.khrc.net/pdf/WorksharingAgreement.pdf. 47. Civil Rights Act of 1964, 88 P.L. 352, 78 Stat. 241 48. Allen Fisher, Women’s Rights and the Civil Rights Act of 1964,

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t National Archives, https://www.archives.gov/women/1964- civil-rights-act. 49. Id. 50. Engrossing Copy of Civil Rights Act of 1964, https://history. house.gov/HouseRecord/Detail/25769811498. 51. Fisher, supra. 52. Equal Employment Opportunity, 30 Fed. Reg. 12319 (Sept. 28,

1965) 53. Id. 54. Id. 55. Amending Executive Order No. 11246, relating to equal employment opportunity, 32 Fed. Reg. 14303 (Oct. 17, 1967) 56. Morrison, supra. 57. Id. 58. Bernice Sandler, “Too Strong for a Woman”: The Five Words That Created Title IX. About Women on Campus, Spring 1997, National Association of Women in Education, at 23, available at https://documents.alexanderstreet.com/d/1005577060. 59. Id. at 23. 60. Id. at 23-24. 61. Id. at 24. 62. Id. 63. Id. at 25. 64. Blakemore, supra. 65. Sandler, supra at 26. 66. Blakemore, supra. 67. Id. 68. Id. 69. Id. 70. Id. 71. Pub. L. No. 92-318 (codified as amended at 20 U.S.C.S. § 1681). 72. 20 U.S.C.S. § 1681(a), 34 CFR 106 (2020). 73. 34 CFR § 106.1 (2020). 74. Dept. of Educ., Sex Discrimination, Overview of the Law, available at https://www2.ed.gov/policy/rights/guid/ocr/ sexoverview.html.

75. Dept. of Justice. Title IX Legal Manual, January 11, 2001 (with post-Bostock Cover Addendum), at 23, available at https:// www.justice.gov/file/1423496/download. 76. Id. 77. Id. 78. Id. at 24. 79. Dept. of Educ., Sex Discrimination, Overview of the Law, supra. 80. Betsy DeVos, Letter to Stakeholders Re: Title IX Final Rule, May 6, 2020, available at https://www2.ed.gov/about/offices/ list/ocr/correspondence/stakeholders/20200506-t9-final-rulek12-educators.pdf.

81. Cannon v. University of Chicago, 441 U.S. 677, 680, 99 S. Ct.

1946, 60 L. Ed. 2d 560 (1979) 82. Id. 83. Id. at 717. 84. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 63, 112 S.

Ct. 1028, 117 L. Ed. 2d 208 (1992) 85. Id. 86. Id. at 64. 87. Id. 88. Id. at 76. 89. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S. Ct.

1989, 141 L. Ed. 2d 277 (1998) 90. Id. at 277. 91. Id. 92. Id. 93. While the court characterized the interactions as a sexual relationship, in 2022, courts and the public are more likely to

40 The Journal of the Kansas Bar Association

view and characterize such interactions as sexual abuse of a child, and as a criminal act against the child. 94. Id. 95. Id. at 278. 96. Id. at 279. 97. Id. at 290. 98. Id. at 291. 99. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S. Ct.

1661, 143 L. Ed. 2d 839 (1999) 100. Id. at 634. 101. Id. 102. Id. 103. Id. at 635. 104. Id. at 635-636. 105. Id. at 639-640. 106. Id. at 640-642. 107. Id. at 647-649 108. Id. at 650 109. 34 CFR §106.30(a)(2) 110. Title IX Regulations Addressing Sexual Harassment, Unofficial Copy with Supplementary Information. Dept. of Educ. At 43. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regsunofficial.pdf 111. Id. at 42. 112. 34 CFR §106.30(a)(1) 113. Alexander v. Yale Univ., 459 F. Supp. 1, 4 (D. Conn. 1977) 114. Sandler, supra at 27. 115. Prohibition of Sex Discrimination, 1975. Hearings Before the Subcommittee on Education of the Committee on Labor and Public Welfare on S. 2106 to Amend Title IX of the Education Amendments of 1972. United States Senate, Ninety-Fourth Congress, First Session, at 10-11, available at 10-11, https://files. eric.ed.gov/fulltext/ED136136.pdf

116. Jocelyn Samuels and Kristen Galles, In Defense of Title IX: Why Current Policies Are Required To Ensure Equality Of Opportunity, 14 Marq. Sports L. Rev. 11, at 40. 117. Id. at 19-23 118. Id. 119. Peter Holmes, Letter to State School Officers, Title IX Obligations in Athletics, Dept. of Health, Educ. and Welfare, November 11, 1975, https://www2.ed.gov/about/offices/list/ocr/ docs/holmes.html. 120. Id. 121. Id. 122. Id. 123. Id. 124. Id. 125. Dept. of Health, Educ. and Welfare, A Policy Interpretation: Title IX and Intercollegiate Athletics, Dec. 11, 1979, https:// www2.ed.gov/about/offices/list/ocr/docs/t9interp.html. 126. Id. 127. Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, Jan. 16, 1996, Norma Cantu, Dept. of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/clarific. html#two.

128. Mary Frances O’Shea, Dept. of Education, Dear Colleague Letter: Bowling Green State University, July 23, 1998, https:// www2.ed.gov/about/offices/list/ocr/docs/bowlgrn.html. 129. Id. 130. Id. 131. Gerald Reynolds, Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance, Dept. of Educ., July 11, 2003, available at https://www2.ed.gov/ about/offices/list/ocr/title9guidanceFinal.pdf.

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132. Id. 133. Grove City Coll. v. Bell, 465 U.S. 555, 119 S. Ct. 1661, 143 L. Ed.

2d 839 (1984). 134. Id. 135. Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, S.

557, 100th Cong. (1988). 136. Id. 137. Id. 138. Dept. of Justice, Title IX Legal Manual, supra. 139. DeVos, supra. 140. Id. 141. Title IX Regulations Addressing Sexual Harassment, Unofficial

Copy with Supplementary Information, supra at 2008.

142. Summary of Major Provisions of the Department of Education’s Title IX Final Rule, Dept. of Educ., available at https://www2. ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf. 143. Id. 144. Id. 145. See supra, text accompanying notes 81-113. 146. Know Your IX v. Devos, 2020 U.S. Dist. LEXIS 194288, 5 (D.

Md. Oct. 20, 2020) 147. Id. at 5. 148. Victim Rights Law Ctr. v. Cardona, 2021 U.S. Dist. LEXIS

140982, at 8 (D. Mass. July 28, 2021) 149. Id. at 59-62. 150. 34 C.F.R. § 106.45 151. Victim Rights Law Ctr. v. Cardona, at 50-52. 152. Id. at 64. 153. Suzanna Goldberg, Letter to Students, Educators, and other Stakeholders re Victim Rights Law Center et al. v. Cardona Notice of Language Assistance, August 24, 2021, available at https://www2.ed.gov/about/offices/list/ocr/docs/202108-titleix- VRLC.pdf.

154. Bostock v. Clayton Cty., 140 S. Ct. 1731, 1737, 207 L. Ed. 2d 218

(2020) 155. Id. 156. Id. at 1738. 157. Id. 158. Id. 159. Id. 160. Id. 161. Id. 162. Id. at 1737. 163. Id. at 1742. 164. Id. at 1742-43. 165. Id. at 1753. 166. Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 598-599 (4th

Cir. 2020) 167. Id. at 599. 168. Id. at 599-601. 169. Id. at 616. 170. Id. at 618. 171. Gloucester Cty. Sch. Bd. v. Grimm, 141 S. Ct. 2878, 210 L. Ed. 2d

977 (2021) 172. Parents for Privacy v. Barr, 949 F.3d 1210, 1217 (9th Cir. 2020) 173. Id. 174. Id. at 1226. 175. Id. at 1226. 176. Id at 1227. 177. Id. 178. Id. at 1240. 179. Parents for Privacy v. Barr, 141 S. Ct. 894, 208 L. Ed. 2d 452

(2020). 180. See Tyler Kingkade, Biden Wants to Scrap Betsy Devos’ Rules

On Sexual Assault In Schools. It Won’t Be Easy, NBC News (Nov. 12, 2020), https://www.nbcnews.com/politics/2020- election/biden-wants-scrap-betsy-devos-rules-sexual-assaultschools-it-n1247472; What Comes Next? Title IX Under a Biden Presidency, JD Supra (Nov. 9, 2020,) https://www.jdsupra.com/ legalnews/what-comes-next-title-ix-under-a-biden-95583/; Will Title IX rules change under Biden Administration?, Univ. of Wash. (Dec. 7, 2020) https://www.washington.edu/ titleix/2020/12/07/will-title-ix-rules-change-under-bidenadministration/.

181. Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, 86 Fed. Reg. 7023 (January 25, 2021). 182. Id. 183. Id. 184. Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, 86 Fed. Reg. 13803 (March 11, 2021).

185. Suzanne B. Goldberg, Letter to Students, Educators, and other Stakeholders re Executive Order 14021 Notice of Language Assistance, April 6, 2021, available at https://www2.ed.gov/ about/offices/list/ocr/correspondence/stakeholders/20210406- titleix-eo-14021.pdf.

186. Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32637 (June 22, 2021).

187. https://www.tn.gov/content/dam/tn/attorneygeneral/ documents/pr/2021/pr21-31-complaint.pdf. See also, Jeremy Bauer-Wolf, 20 States Sue Education Department Over Title IX Interpretation, Higher Ed Dive (Sept. 2, 2021) https://www. highereddive.com/news/20-states-sue-education-departmentover-title-ix-interpretation/606029/.

188. The bills include: Protect Women’s Sports Act of 2020, 116 H.R. 8932, Justice for All Act of 2020, 116 H.R. 8698, Protection of Women and Girls in Sports Act of 2020, 116 H.R. 5702, Protection of Women and Girls in Sports Act of 2020, 116 S. 4649, Title IX Take Responsibility Act of 2021, 117 H.R. 5396, Safety and Opportunity for Girls Act of 2021, 117 H.R. 1417, Protection of Women and Girls in Sports Act of 2021, 117 H.R. 426, Protection of Women and Girls in Sports Act of 2021, 117 S. 251 189. Title IX Take Responsibility Act of 2021, 117 H.R. 5396 190. S.B. 160 (Kan. 2022). 191. Press Release, Dept. of Educ., Statement by U.S. Department of Education Assistant Secretary for Civil Rights Catherine E. Lhamon on Title IX Update in Fall 2021 Unified Agenda and Regulatory Plan (Dec. 10, 2021), available at https:// www.ed.gov/news/press-releases/statement-us-departmenteducation-assistant-secretary-office-civil-rights-catherinelhamon-title-ix-update-fall-2021-unified-agenda-and-regulatory-plan.

192. Catherine E. Lhamon, An Update on The Rulemaking Process For Title IX, Office for Civil Rights Blog (Feb. 18, 2022), https:// www2.ed.gov/about/offices/list/ocr/blog/index.html.

193. Office of the Federal Register, A Guide to the Rulemaking Process, at 4, available at https://www.federalregister.gov/ uploads/2011/01/the_rulemaking_process.pdf.

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