C.F.R. » Title 34 » CHAPTER I—OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION › PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE › Subpart D—Discrimination on the Basis of Sex in Education Programs or Activities Prohibited

34 C.F.R. § 106.40

Marital or parental status

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(a) Status generally. A recipient shall not apply any rule concerning a student's actual or potential parental, family, or marital status which treats students differently on the basis of sex.

(b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.

(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation so long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.

(3) A recipient which operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section shall ensure that the separate portion is comparable to that offered to non-pregnant students.

(4) A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan or policy which such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient's educational program or activity.

(5) In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began.

[91 FR 61318, Sept. 29, 2026]
Notes of Decisions
Cited in 8 cases (2 in the last 5 years), 1990–2026 · leading case: Henschke v. New York Hosp.-Cornell Med. Ctr., 821 F. Supp. 166 (S.D.N.Y. 1993).
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Henschke v. New York Hosp.-Cornell Med. Ctr., 821 F. Supp. 166 (S.D.N.Y. 1993). “Plaintiff asserts one claim under Title IX and a separate claim under the regulations *173 promulgated pursuant to Title IX, see 34 C.F.R. § 106.40 et seq. (the “Regulations”).”
Conley v. Nw. Florida State Coll., 145 F. Supp. 3d 1073 (N.D. Fla. 2015). · cites it 8× “She relies in part on a Department of Education Regulation- 34 C.F.R. § 106.40 that construes § 1681’s prohibition of discrimination “on the basis of sex” - to include pregnancy-based discrimination.”
Darian v. Univ. of Massachusetts Boston, 980 F. Supp. 77 (D. Mass. 1997). “” 34 C.F.R. 106.40(b)(1). To prove a violation of Title IX, a plaintiff must establish a prima facie case by showing a .”
Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3d Cir. 1990). “Pursuant to 34 C.F.R. § 106.40 (1980), A recipient shall not apply any rule concerning a student’s actual or potential parental, family, or marital status which treats students differently on the basis of sex.”
Hall v. Lee Coll., Inc., 932 F. Supp. 1027 (E.D. Tenn. 1996). “Under this element, the Court includes factors of pregnancy and marital status as provided in 34 C.F.R. § 106.40 .”
Chipman v. Grant Cnty. Sch. Dist., 30 F. Supp. 2d 975 (E.D. Ky. 1998). · cites it 2× “34 C.F.R. § 106.40 (a). 34 C.F.R. § 106.40 (b) specifically provides: (b) Pregnancy and related conditions.”
State of Texas v. United States, 740 F. Supp. 3d 537 (N.D. Tex. 2024). · cites it 4× “at 33,888 (to be codified at 34 C.F.R. § 106.40 (b)(4)); see 89 Fed. Reg.”
Hunter, No. 8:24-cv-00954 (D.S.C. Apr. 24, 2026). · cites it 2× “The plaintiff, without citing any record evidence, contends that whether the university discriminated against her because of her pregnancy is an issue of fact and cites 34 C.F.R. § 106.40 (b)(1)4 (doc. 131 at 4).”
34 C.F.R. § 106.40(b)(1): 1 case
Darian v. Univ. of Massachusetts Boston, 980 F. Supp. 77 (D. Mass. 1997). “” 34 C.F.R. 106.40(b)(1). To prove a violation of Title IX, a plaintiff must establish a prima facie case by showing a .”
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