At Long Last: What’s Included in the 2024 Title IX Regulations

April 23, 2024 | Felice Duffy | Title IX : News

Nearly two years after the Biden administration announced proposed new rules governing Title IX administration, the Final Rule has been released. The Administration announced an intention to build on the progress achieved over the more than 50 years since Title IX first entered the education landscape. While the Administration lauded the “tremendous strides in access to education,” they decried an “unacceptably high” rate of sexual harassment and assault on campuses, pregnancy discrimination, and bullying and harassment of LGBTQI+ students.

In formulating the 2024 Final Rule, the Administration reviewed more than 240,000 comments submitted after the release of the proposed new regulations. The sheer volume of commentary material—perhaps combined with political, judicial, and other issues—delayed the release of the Final Rule well beyond the original projected date of May 2023. Last spring, the Administration announced that the Final Rule would be implemented in October, and then they quietly pushed back the release to the spring. 

Now that the day has finally come, we can start analyzing the new regulations to anticipate the changes ahead. The unofficial version of the Final Rule is more than 1500 pages in length, and of course, the rules have not yet been implemented into any campus policies or tested in any court, so it will take some time for the full ramifications to become apparent.

Goals of the New Final Rule

The official description of the objectives of the new regulations could have come from any version of the rules. The Administration says the Final Rule is designed to ensure that students and employees “receive appropriate support if they experience sex discrimination in schools.” In addition, the new regulations are also intended to ensure that the procedures used by schools to investigate and resolve complaints of sex discrimination are “accurate and fair to all involved.”

The issues, of course, center around how the rules attempt to achieve these objectives. What is considered “fair?” How can you ensure the Title IX investigations and adjudications are “accurate?” What constitutes “appropriate support?” And perhaps the biggest issue of all, what is now considered to constitute “sex discrimination?” 

In the announcement accompanying the release of the Final Rule, the Administration explains that they have clarified the definition of “sex-based harassment” as well as the “scope of sex discrimination” and provided more information about the obligations educational institutions must uphold to provide an environment free from discrimination on the basis of sex. The agency places great emphasis on the fact that the new “clear rules” will help schools meet their Title IX obligations.

Finally, the Administration asserts that the Final Rule reaffirms a commitment to four principles, two of which might be included in a regulatory announcement regarding any version of the regulations and two of which hint at the substances of the regulatory changes. The first two principles are “fundamental fairness for all parties” and “respect for freedom of speech and academic freedom.” The third principle is “the rights of parents and guardians to support minor children,” and because the word “support” could be interpreted in multiple ways, it is difficult to anticipate what this means and whether parents will agree with this assessment. Finally, the Administration affirms a commitment to respect for “the autonomy that complainants need and deserve when they come forward with a claim of sex discrimination,” which seems to indicate increased protections for complainants, possibly at the expense of the rights of respondents.

Scope of Sex Discrimination Expanded

One of the issues that has captured the most general public attention with regard to the new regulations is the expansion in the scope of sex discrimination protection. The unofficial version of the new regulations devotes 49 pages to a discussion of the addition of proposed regulatory section 106.10, reviewing and answering comments made regarding a wide variety of issues. At the end of the extensive review, the agency concludes that no changes are necessary to the proposed rule.

The Administration’s summary states that the new regulatory section on the scope of Title IX “[c]larifies that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” This is viewed as ground-breaking and overly broad for many, while others see it simply as a ratification of existing practices.

In discussion, the Administration relates the expectation that the explicitly stated scope will “facilitate a consistent understanding of Title IX across the country,” overriding interpretations in states where courts chose not to recognize this expansion of sex discrimination protections. 

Definitions Associated with Sex Discrimination Factors

The Administration declined to provide a specific definition of sex, citing it as unnecessary. They reasoned that regardless of how sex was defined, whether or not it referred only to physiological or biological distinctions, discrimination on the basis of factors included in the new regulations still includes consideration of an individual’s sex.

Despite being asked for further clarity, in this section, the Administration also declined to add a definition of the following factors:

• Sex stereotypes
• Sex characteristics
• Pregnancy or related conditions
• Sexual orientation
• Gender identity

Some commenters, for instance, wanted to know whether “gender identity” only included transgender individuals. While the rules do not specifically define gender identity, the Administration notes that their understanding of gender identity refers to “an individual’s sense of their gender, which may or may not be different from their sex assigned at birth.”

The Administration has provided some definitions elsewhere but notes that the terms are “well understood” and “informed by case law.” 

Factors That Were Not Added

While the Administration declined to add “marital status” as a factor protected by Title IX, they noted that Title IX prohibits a school from applying marital status rules that treat staff or students differently on the basis of sex. For instance, if a rule treated an unmarried mother less favorably than a married mother or treated same-sex married couples detrimentally compared to couples with partners of the opposite sex, then those school rules would violate Title IX.

Commenters also sought to add “menstruation and related conditions” to the protections of Title IX. The Administration believed this to be an unnecessary addition because the conditions would fall under the scope of conditions related to pregnancy, sex stereotypes, or sex characteristics. In addition, they declined the request to add specific protections for the privacy of menstrual information or to require schools to provide menstrual health education and training.

Clarification for the Future

For clarification, the Administration explains that 106.10 covers discrimination based on perceived status, regardless of whether the perception is accurate.

The key provisions in this regulatory section are the specific inclusion of sexual orientation and gender identity in the scope of Title IX protection. Comments in the Administration’s announcement of the proposed regulations and the final regulations make it clear that this was a priority for the Administration. They cited agreement with the commenters who asserted that “discrimination based on sexual orientation and gender identity is a serious problem.” The Administration expects that the expansion of the new regulations will “increase the inclusion and the safety of LGBTQI+ students and employees in schools” and give them a concrete way to address the harassment they experience.

Requiring Schools to Allow Students to Participate in an Activity Based on Gender Identity

Once the Administration officially extended Title IX protections to gender identity, they then needed to address the thorny question of participation in programs on the basis of that identity. According to the Administration’s summary, Section 106.31(a)(2) of revised rules “[c}larifies that a recipient must not separate or treat any person differently based on sex in a manner that subjects them to more than de minimis harm, except in the limited specified circumstances” and that if a school prohibits a student from participating in an education program or activity “consistent with their gender identity,” they have subjected that student to more than de minimis harm and therefore violated Title IX.

Commenters asked for an explanation of how the new regulatory standard would apply to individuals other than students, such as staff, faculty, parents, and others participating in a school’s educational program or activity. In response, the Administration clarified that the standard applies to all individuals.

When Separation is Allowed

The Administration agreed with suggestions that they should specify the contexts in which a school can cause more than de minimis harm by separating participants in a program on the basis of sex. They stated that such separation is only allowed with regard to the exceptions described in 20 U.S.C. §1681(a)(1) through (9) and the accompanying regulations and described them as being limited to:

• Religious institutions where religious tenets require such separation
• Military and merchant marine institutions
• Social fraternities and sororities
• Youth service organizations where membership has traditionally been limited to individuals of one sex less than 19 years of age
• Schools that traditionally and continuously have only admitted students of one sex

Housing and athletic teams can also be separated on the basis of sex. Does that mean students who were assigned one gender at birth but identify as a different gender years later are permitted to participate in a sports team affiliated with their gender identity?

The answer is not straightforward. The Administration notes that due to the unique nature of athletic contests, the Department of Education has always interpreted Title IX requirements to “tolerate” sex separation in athletics even when it imposes more than a de minimis harm as long as it serves educational interests. Exclusion from a program is permissible as long as students have an “equal opportunity to access the recipient’s athletic program as a whole.” The Administration further notes that the Department has consistently evaluated a school’s compliance with equal opportunity requirements at a program-wide level rather than an individual basis. Therefore, the conclusion is that the prohibition against denying a student the ability to participate in a program on the basis of gender identity because it would cause more than de minimis harm does not apply to sex-separate athletic teams.

The Administration notes that an outstanding proposed rulemaking process would set the standard for criteria for eligibility to participate in sex-separate athletic teams. In other words, this big point of contention is still on the table.

Living Facilities are Different

With regard to “living facilities,” the Administration noted that federal statutes permit schools to maintain separate living facilities for the “different sexes.” Because this is permitted and is not considered a violation of Title IX, the Administration reasons that schools are allowed to exclude student sex-separate housing consistent with their gender identity. However, they seem to suggest that schools should voluntarily adopt policies that allow students to live in sex-separate housing according to their gender identity. Moreover, they specify that the exception for living facilities does not include bathrooms, locker rooms, showers and other facilities.

When Sex-Based Harassment Creates a Hostile Environment

With the expansion of the scope of Title IX, the Administration clarified that harassment on the basis of any of the new factors is considered sex-based harassment and that sex-based harassment is a form of sex discrimination.

The new rules provide greater specificity about the definition of sex-based harassment and when it creates a hostile environment. The new Final Rule “modifies the proposed definition in certain respects but retains the core elements of the proposed definition” in a manner explained in over 120 pages of commentary.  

Asserting that the definition of sexual harassment under the 2020 rules “failed to fully effectuate Title IX’s prohibition on sex discrimination,” the Administration explained why the Department of Education has the authority to adopt a definition of hostile environment sex-based harassment. 

No Need to Follow Supreme Court Definition in Davis

The Administration also expressed a belief that the regulatory definition of what constituted hostile environment sex-based harassment does not need to be identical to the standard articulated by the U.S. Supreme Court in Davis v. Monroe County Board of Education (526 U.S. 629 (1999). In that case, the Court held that sexual harassment was actionable when it was “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” 

The Administration believes that the Court did not establish a definition of hostile environment sex-based harassment but rather described when such an environment was sufficiently serious to provide grounds for imposing a remedy of monetary damages from an institution. They find it reasonable to establish separate standards for monetary damages and administrative enforcement of Title IX obligations. Therefore, a school might impose sanctions on a student, faculty, or staff member for hostile environment sex-based harassment but not be held liable for damages in a civil lawsuit if the school fails to impose such sanctions. 

The Administration notes that the “severe and pervasive” standard is a high bar to meet and that while such a barrier might be appropriate for monetary liability, it is not “necessary or appropriate in the administrative context” where the goal is to ensure access to education.

Either Pervasive or Severe

Thus, conduct that is “either pervasive or severe” can be considered to create a hostile environment under the Department of Education’s interpretation. A single incident may be severe enough to create a hostile environment under the new regulations. Conversely, pervasive conduct can also create a hostile environment, even if not a single instance is severe. Specifically, to create a hostile environment under the new rules, the conduct must be:

• Unwelcome
• Sex-based
• Subjectively and objectively offensive and
• Severe or pervasive

The combined effect of these characteristics must limit or deny an individual’s ability to participate in or benefit from an educational program or activity. That is the regulatory standard for determining whether conduct is sufficiently severe or pervasive to constitute a violation. An example is given of conduct that occurs on multiple occasions so persistently that it prevents a student from completing coursework at the student’s typical level of performance.

Formerly, the standard for a hostile environment required conduct to “effectively deny” access to opportunities. The new rules adjust this language to include conduct that “limits” as well as denies participation or benefit. While an action that limits opportunities could be said to effectively deny such opportunities, this does seem to be a lower bar for qualification. 

Determinations Based on the Specific Facts 

The determination of what constitutes a hostile environment must be made on a case-by-case basis, taking into account the ages, roles, and other relevant characteristics of the individuals involved. For instance, the Administration notes that conduct might be prohibited for creating a hostile environment if it occurred between a faculty or staff member and a student, while the same conduct might be permissible if it occurred between students.  

Substantial discussion was devoted to the issue of First Amendment free speech protections in the context of this and other provisions of the new regulations. Some commenters noted that new regulations remove two of the three allusions to the importance of the First Amendment that were in the rules previously. The Administration believes that by adding the word “offensive” to the subjective and objective standard, they have narrowly tailored the definition of what constitutes a hostile environment in a way that advances compelling government interests “unrelated to the suppression of speech.”

The Administration also clarified that when a school learns about sex-based harassment occurring among students in an online context, if it creates a hostile environment in the school’s education program or activity, then the school is obliged to address the hostile environment. However, schools do not have an obligation to monitor students’ online activity outside the educational program or activity.

Procedures for Title IX Complaints

Another set of key issues that have repeatedly resurfaced in Title IX revisions in recent years concern the grievance procedures for handling complaints of sex discrimination on campus. The rules in effect prior to 2020 were often alleged to illegally favor complainants in proceedings while revisions in 2020 were criticized for making it too burdensome for complainants and thereby favoring respondents. Due process protections in campus proceedings were often a serious point of contention.

Informal Resolution Proceedings an Option

The Administration begins the discussion by noting that schools are required to either implement grievance procedures that comply with the revised Section 106.45 of the regulations or they must offer informal resolution proceedings that meet the standards of Section 106.44(k) when resolving a complaint of sex discrimination. Postsecondary institutions have the additional obligation to implement grievance procedures compliant with Section 106.46 or informal resolution when either the complainant or respondent is a student. 

The Administration notes that the revised 106.46 keeps many of the provisions implemented in 2020 such as allowing an advisor to question parties and witnesses during a live hearing. The rules also retain provisions for appeal based on new evidence, procedural irregularity, bias, or conflict of interest. However, the Administration stated a belief that many of the procedures required under the 2020 rules were “unduly burdensome” and that they discouraged the filing of complaints by those who had experienced discrimination or harassment. One way of addressing this was to allow schools to use informal means to address concerns “when appropriate.” Another way was to give schools discretion on whether to create grievance procedures that are less adversarial, such as allowing the choice of holding live hearings and determining how parties and witnesses can be questioned.

The new rules give schools discretion to determine whether to allow or limit the use of expert witnesses. Although the rules allow a school’s Title IX Coordinator authority to initiate grievance proceedings, the Coordinator may only initiate a complaint upon a finding that conduct presents an imminent and serious threat to health or safety or that conduct prevents the school from ensuring equal access.

Standards of Proof

One of the biggest concerns for those advocating for the rights of respondents in Title IX cases was the proposal to allow schools to apply a less stringent standard to assess responsibility for an alleged violation. The regulations have always required schools to use the “preponderance of the evidence” standard in proceedings unless the school uses the more stringent “clear and convincing evidence” standard in “comparable proceedings.”

It remains to be seen whether schools will keep the preponderance of the evidence standard, which could encourage more aggrieved students to file complaints or apply the clear and convincing evidence standard in other proceedings on campus.

Other Components of the 2024 Rules

In addition to the issues discussed above, the Administration made clarifications and changes in numerous other areas. Because of the sheer volume of regulatory additions and amendments, it may take considerable time to determine which changes will have the greatest impact on Title IX implementation on campus and in the courts.  

Definitions and Administrative Requirements

Although the Administration did not find it necessary to create or revise definitions of all terms requested by commenters, they did establish or adjust definitions of the following terms in Section 106.2:

• Complaint
• Complainant
• Confidential employee
• Disciplinary sanctions
• Party
• Pregnancy or related conditions
• Relevant
• Remedies
• Respondent
• Retaliation (including peer retaliation)
• Sex-based harassment
• Supportive measures

The new rules also clarify the requirements for appointing a Title IX Coordinator and adopting and publishing policies and grievance procedures. Critically, the rules specify which individuals must be trained on Title IX issues and include requirements for this training. The 2024 rules also clarify which records must be kept by educational institutions for seven years, which can aid students, faculty, and staff in dealing with issues that occurred in prior years.

Off-Campus Activities 

To address uncertainty about Title IX protections for activities occurring off campus, the rules clarify that Title IX provisions apply to any sex discrimination occurring in connection with a recipient’s education program or activity in the United States and provide additional details about covered conduct. 

Furthermore, the rules specify that educational institutions have a duty to address concerns over a sex-based hostile environment under its education program or activity even if some of the conduct alleged to be contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States

Protection Based on Pregnancy and Marital Status

Although marital status was not added as a specific factor for protection, the new rules prohibit treating anyone differently based on sex in connection with parental or marital status. Students, employees, and applicants cannot be discriminated against on the basis of pregnancy or related conditions, and schools need to take steps to ensure equal access to programs by providing modifications when necessary. For instance, they may be required to provide reasonable breaks and space for lactation. 

Required Steps for Title IX Coordinators

When school staff become aware of conduct that may constitute sex discrimination, the rules set forth steps the Title IX Coordinator must take. These include offering supportive measures, knowing when to initiate a complaint, and taking actions to “end sex discrimination and prevent its recurrence.”

Peer Retaliation

The 2024 rules revise the retaliation provisions to clarify that schools must prohibit all forms of retaliation including peer retaliation. If conduct that may constitute retaliation occurs, schools are expected to respond using the same procedures used to investigate and resolve instances of other types of sex discrimination. 

Duffy Law Helps Students, Faculty, and Staff Protect Their Title IX Rights 

At Duffy Law, we have been championing the Title IX rights of individuals for decades, so we are keenly aware of the nuances of interpretation when it comes to Title IX regulations. In the days, weeks, and years to come, we will be monitoring the implementation of these new requirements on campuses around the country and analyzing administrative guidance and court interpretations so that we are always prepared to make the strongest arguments to achieve positive results for our clients. 

Whether you want assistance filing a complaint or you need to respond to allegations raised against you, we are prepared to fight effectively on campus and in court to protect your future. For a confidential consultation to discuss any Title IX issue, contact our team today.