Dive Brief:
- The U.S. Department of Education sent its long-awaited Title IX proposed rule to the White House on Friday after significant delay, bringing the department one step closer to finalizing the controversial regulation. The department has yet to send the second Title IX rule — on transgender students' athletics participation — to the Office of Management and Budget, which oversees federal regulations.
- The department already missed two deadlines it set for the release of both rules, once in May 2023 and again in October 2023. The agency attributed the delays to overwhelming feedback on the proposals.
- The department then pivoted to a March 2024 deadline for both rules. However, the Office of Information and Regulatory Affairs, the division of OMB that reviews draft regulations, could take up to 120 days to review each one.
Dive Insight:
Under President Joe Biden, the Education Department has focused on expanding Title IX to protect LGBTQ+ students — a significant departure from the Trump administration's enforcement of the statute. The Title IX civil rights law bans sex-based discrimination in federally funded education programs.
As part of that focus,Biden's Education Department introduced a separate athletics proposal in addition to reversing many of former Education Secretary Betsy DeVos' regulatory changes to Title IX.
The broader Title IX rule, which was originally proposed in June 2022 and now sent to OMB on Friday, would direct how K-12 schools investigate and potentially punish sexual assault and harassment. The second rule, which was proposed much later, in April 2023, and has not yet gone to OMB, would prohibit blanket bans on transgender athletes participating in sports teams aligning with their gender identities.
"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," said a department spokesperson.
While OMB technically has 90 days to go through the Title IX rule currently under its review, it can extend its review by an additional month for a total of 120 days. If it exhausts its 120 days, that would push the release of the broader Title IX rules to late spring, nearly two years after the proposal's release. And considering the Title IX athletics rule hasn't yet been sent to OMB, its release could be delayed even further.
"OMB can take up to 90 days, so it's in their hands," a department spokesperson said when asked if the agency still expects to meet its March 2024 deadline for the broader Title IX rule.
When DeVos' Title IX rule cleared OMB in 2020, the department took an additional few weeks to release the regulations, which could also be the case this time around. That rule garnered 120,000 comments and was also made final after nearly two years.
