Title IX Unofficial Regulations

The United States Department of Education (DOE) released the long-awaited final version of the regulations for Title IX of the Education Amendments of 1972 (Title IX), which will go into effect on August 1, 2024.  Title IX prohibits discrimination based on sex in education programs and activities that receive federal financial assistance.

Although these new regulations give recipients (e.g., elementary and secondary schools and postsecondary institutions) discretion and flexibility in determining the content of their nondiscrimination policies and establishing grievance procedures to account for variations in school size, student populations, and administrative structures, the regulations also involve numerous notable changes.  The changes require recipients to amend their Title IX policies, trainings, notices, and grievance procedures.

This article will focus on the most significant changes.

Sex Discrimination and Sex-Based Harassment

The changes to the Title IX regulations expand the scope of Title IX’s prohibition on sex discrimination by changing the definition of “sex-based harassment.”  Sex-based harassment now includes sexual harassment or harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity, when such harassment involves: (1) quid pro quo harassment (2) hostile environment harassment; and/or (3) sexual assault, dating violence, domestic violence, and stalking.

With respect to hostile environment harassment, a few notable changes have been made: (1) a determination that a person has engaged in unwelcome conduct no longer requires a showing that the conduct was severe, pervasive, and objectively offensive – rather, it requires a showing that it is subjectively and objectively offensive and is so severe or pervasive; (2) recipients must engage in a fact-specific inquiry to determine whether a hostile environment exists, which includes consideration of the degree to which access is affected, type/frequency/duration of the conduct, parties’ ages/roles/previous interactions/other relevant factors about the parties, location, and other sex-based harassment in the recipient’s program or activity; and (3) recipients have an obligation to address hostile environments within its education program or activity, even when some conduct that is contributing to that hostile environment is alleged to have occurred outside of the education program or activity or the United States.

Training

As a result of the changes to the Title IX regulations, all employees are now required to receive training related to all forms of sex discrimination upon hiring or upon a change of position that alters the employee’s duties.  Title IX Coordinators, investigators, and decisionmakers must receive this training and other role-specific training upon hire and change of position that alters their duties.  All such training must be provided annually.

Title IX Role-Specific Requirements

As a result of the changes to the Title IX regulations, after receiving notification of conduct that may reasonably constitute sex discrimination, Title IX Coordinators must take certain steps which include notifying individuals involved, offering supportive services, and taking steps to stop discrimination if it is happening.

Additionally, under the new regulations, recipients have the ability to assign more than one Title IX Coordinator; however, recipients must identify one of those Title IX Coordinators to retain ultimate oversight over the responsibilities under Title IX and ensure the recipient’s consistent compliance with its responsibilities under Title IX and the Title IX regulations.  In addition, a recipient may delegate, or assign a Title IX Coordinator to delegate, specific duties to a designee(s).

Provided there is no conflict of interest/bias, a decisionmaker may be the same person as a Title IX Coordinator or investigator.

Also, when a recipient receives a complaint involving a student with a disability, whether that student is the complainant or respondent, the Title IX Coordinator must consult with one or more members of the student’s IEP or Section 504 team, to ensure compliance with respective laws.

Requirement to Respond

Unlike the 2020 version of the Title IX regulations that required a recipient with actual knowledge to respond promptly and in a manner that was not “deliberately indifferent,” under the new regulations “a recipient [must] respond promptly and effectively when the recipient has knowledge of conduct that reasonably may constitute sex discrimination.”

Grievance Procedures

For All Recipients

The new Title IX regulations require all recipients to adopt and publish grievance procedures applicable to all complaints of sex discrimination, including sex-based harassment.

Additionally, complaints that trigger the recipient’s grievance procedures may be initiated either orally or in writing.  Complaints of sex discrimination, including sex-based harassment, may be made by: (i) the complainant; (ii) a parent/guardian/authorized legal representative with the legal right to act on behalf of the complainant; (iii) the Title IX Coordinator (provided a determination under § 106.44(f)(1)(v) has been made); (iv) and for complaints, not including sex-based discrimination, the complaints may be made by: (A) any student or employee; or (B) any person other than a student or employee who was participating or attempting to participate in the recipient’s education program or activity.  Additionally, complaints may be made, even if the complainant has left the school or institution, provided that the discrimination the complainant allegedly endured was within the scope of Title IX’s protections at the time it occurred.

Furthermore, all recipients are required to adopt grievance procedures in writing that include a significant number of requirements.  A few examples include:

• Treat complainants/respondents equitably, giving equal opportunity to present and access relevant and not otherwise impermissible evidence.
• Establish reasonably prompt time frames for all major stages (i.e., evaluation, investigation, determination, and appeal).
• If the recipient adopts grievance procedures applicable to some, but not all complaints, articulate consistent principles for determining which procedures apply.
• Use the preponderance of the evidence standard of proof for determining whether sex discrimination occurred, unless the recipient uses the clear and convincing evidence standard in all other comparable proceedings, in which case that standard may be used.
• Offer a choice to parties to participate in an informal resolution process, if the recipient provides for such processes.

Nothing in the new regulations prevents a recipient from adopting additional provisions for its grievance procedures, provided they apply equally to the parties.

Postsecondary-specific Grievance Procedures

A postsecondary institution’s written grievance procedures must provide for all of the requirements that apply to school districts, as well as several additional requirements.

Retaliation

The new Title IX regulations define retaliation to include intimidation, threats, coercion, or discrimination against any person for the purpose of interfering with any right or privilege secured by the statute or regulations, or because the person reported possible sex discrimination, made such a complaint, or participated or refused to participate in any way in a recipient’s Title IX process.  Retaliation has been clarified to include peer retaliation.  Recipients must prohibit all retaliation and respond to information and complaints that may reasonably constitute retaliation using the aforementioned procedures.

Rights of Transgender and Gender Nonconforming Students

The DOE has clarified in the new Title IX regulations that otherwise permissible sex separation is only consistent with Title IX provided “it is carried out in a manner that does not impose more than de minimis harm on affected students.”  The new regulations specify that “[a]dopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm.”  While the new regulations do not explicitly address locker room and bathroom use, the DOE included the following in its discussion of the new regulations:

• “[A] recipient must not provide sex-separate facilities or activities in a manner that subjects any person to legally cognizable injury [which may include stigmatic injuries] – i.e., more than de minimis harm – unless there is a statutory basis for allowing otherwise.”
• “[N]othing in Title IX or the final regulations prevents a recipient from offering single-occupancy facilities, among other accommodations, to any students who seek additional privacy for any reason.”
• The optional provision allowing for “separate living facilities for different sexes” under Title IX, does not apply to restrooms or locker rooms.

The new Title IX regulations do not include rules related to athletic eligibility and participation criteria.  The DOE has pending regulations specific to such eligibility and participation criteria.

Upcoming Training

Given the number of significant changes to the Title IX regulations and the effective date of August 1, 2024, our firm will be providing training in the near future to support recipients as they navigate the requirements under these new regulations.