Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law's ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there is explicit Title IX coverage, menstruation will continue to cause some students to miss instruction. Other students may be denied access to a menstrual product or a restroom as needed and face health consequences. They also may be teased and bullied after menstrual blood visibly leaks onto their clothes. Employees, who are also covered by Title IX, may be fired for damaging school property as a result of such leaks. People in perimenopause may be denied reasonable modifications like bathroom access, water, or temperature control. Collectively, this creates an educational system that prevents students, faculty, or employees from fully participating in educational institutions and causes harm.
On July 12, 2022, the U.S. Department of Education (“DOE”) issued a Notice of Proposed Rulemaking “to better align the Title IX regulatory requirements with Title IX's nondiscrimination mandate, and to clarify the scope and application of Title IX and [schools' obligations] to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination.” On September 12, 2022, the Authors submitted the below Comment asking the DOE to modify existing regulations to cover menstruation-related discrimination in three ways. First, the regulations should include “menstruation or related conditions” from menarche through menopause in the scope of discrimination on the basis of sex. Second, the regulations should include reasonable modifications for “menstruation or related conditions.” Finally, the regulations should provide education on “menstruation or related conditions” to all students and employees, regardless of sex, to tackle barriers related to reporting and eliminating sex-based discrimination and to provide equal access. Only then will Title IX be able to fully live up to its nondiscrimination mandate.
This Article contains our Comment asking the DOE to make these changes and explicitly include menstruation or related conditions in Title IX's protections. In addition to our Comment, over 150 of the publicly available rulemaking submissions referenced menstruation and over thirty-five mentioned menopause. Collectively, these comments--from other academics, public health scholars, medical practitioners, clinicians, advocates, and individuals--further demonstrate the need for Title IX to cover menstruation-related discrimination.
Bridget J. Crawford & Emily Gold Waldman et al., Title IX and "Menstruation or Related Conditions," 30 Mich. J. Gender & L. 25 (2023), https://digitalcommons.pace.edu/lawfaculty/1256/.