Understanding What Constitutes Sexual Harassment Under Title IX in 2025
| | Title IX, Title IX: Sexual Harassment
The revisions to the Title IX regulatory scheme that were proposed in 2022 and released in 2024 changed the definition of sexual harassment in several critical ways. Sexual harassment is a form of sexual discrimination prohibited by Title IX and the source of most of the complaints filed by students, faculty, and staff on college and university campuses around the country.
While the new rules took effect in August for schools in approximately half of the country, recent court decisions and guidance from the new federal administration have made it clear that those changes are no longer in effect. So, it’s necessary to look back to the 2020 rule to understand what is considered sexual harassment for Title IX purposes in 2025.
Overview of Title IX Sexual Harassment
Sexual harassment is defined in the 2020 Final Rule to include three broad types of sexual misconduct:
- Quid pro quo harassment by an employee of an educational institution
- Unwelcome offensive conduct that denies access to equal education opportunities
- Sexual violence or assault (as defined under certain federal statutes)
The second of these three definitions, which is often referred to as “hostile environment” harassment, was the provision most subjected to debate and revision. However, all three require careful consideration and an understanding of the nuances of administrative guidance and case law application.
Quid Pro Quo Harassment
Quid pro quo means “this for that.” When someone in a position of power offers a benefit or pledges to withhold a threatened punishment in exchange for particular behavior, that is a quid pro quo situation. Quid pro quo harassment in violation of Title IX occurs when an employee of a university, college, or other school offers a benefit in exchange for some type of sexual favor. This could be something very subtle, such as putting up with inappropriate jokes or statements in order to be cast in a role in a school theatrical production or selected as a starter on an athletic team. In fact, even implying that a student could receive a benefit in exchange for participating in or submitting to sexually inappropriate behavior could constitute quid pro quo harassment.
Sexual Violence
Sexual assault and other forms of sexual violence clearly constitute sexual harassment. This includes dating violence, domestic violence and stalking. For definitions of these terms, the Department refers to the Clery Act and the Violence Against Women Act. Dating violence, for instance, is defined in 34 U.S.C. §12291 as violence committed against someone with whom an individual is currently or was formerly in a romantic or intimate social relationship.
Both quid pro quo harassment and sexual violence are considered sufficiently serious enough that there is no need to evaluate their severity to determine whether they constitute sexual harassment for Title IX purposes. However, that is not true for the second category of harassment, offensive conduct.
When Unwelcome Offensive Conduct Crosses the Line to Sexual Harassment Under Title IX
The rules have fluctuated with regard to when unwelcome offensive conduct should be considered sexual harassment under Title IX. In 2020, the Title IX rules established a threshold specifying for conduct to be harassment, it must be:
- Unwelcome
- Severe
- Pervasive
- Objectively offensive
Additionally, it must meet all these criteria to a degree that a reasonable person would find that the conduct effectively denies their rights to equal access to educational opportunities.
In response to complaints that this standard was too high to meet and precluded complainants from obtaining justice after their Title IX rights had been violated, the Biden administration lowered the bar by relaxing the standard. Instead of having to prove that conduct was severe and pervasive, under the 2024 rule, complainants would only have needed to prove that conduct was either severe or pervasive. Moreover, instead of having to prove that the offensive conduct effectively denied equal access to education, a complainant would only need to prove that it limited their ability to participate.
Concerns were raised, however, that when the unwelcome conduct includes speech or actions indicating an opinion, this lower standard could interfere with the right to free speech. To allow schools to balance the interests of academic freedom and free speech with Title IX goals, in 2025, the Department of Education chose to use the more restrictive definition to determine when offensive conduct constituted a Title IX violation. The reasoning is that “[s]tudents, teachers, faculty, and others should enjoy free speech and academic freedom protections, even when speech or expression is offensive.”
Since the 2024 Rule has been vacated by the court and declared unenforceable by the Department of Education, the standard for determining when unwelcome offensive conduct crosses the line to be actionable sexual harassment has returned to the 2020 standard. “Unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access” is considered sexual harassment in violation of Title IX.
Harassment Has Not Been Expanded to Include Sexual Orientation and Gender Identity
In the 2024 rules, the Biden Administration specified that sex discrimination prohibited by Title IX included harassment and other forms of discrimination that were based on:
- Sex stereotypes
- Sex characteristics
- Pregnancy or related conditions
- Sexual orientation
- Gender identity
Judicial challenges to these rules focused primarily on the issue of gender identity, and these decisions, along with Executive Order 14168 and the guidance from the Department of Education, make it clear that Title IX protections will not extend to gender identity for the foreseeable future. What is less clear, however, is whether discrimination based on some of the other factors listed could remain actionable under Title IX. For example, pregnancy is a condition related to females biologically, so a hostile environment or policies that discriminate against someone who is pregnant or nursing could arguably constitute a Title IX violation. The same could be argued for discrimination based on sex stereotypes and sex characteristics when they are based on male or female stereotypes and characteristics.
Those concerned that the Title IX complaint process cannot be used to address harassment based on gender identity or sexual orientation need to remember that most schools will have rules prohibiting this behavior in their codes of conduct so there will still be processes for bringing violations to light and seeking relief through administrative proceedings. Some types of conduct may also violate state or local laws as well, so it may be possible to file a lawsuit for discrimination under schemes other than Title IX.
Asserting Rights on Campus Requires the Right Knowledge, Dedication, and Skill
In Title IX cases as well as violations of school conduct codes and other matters on campus, the process of defending against accusations or pursuing a complaint for justice can be very different than the process of protecting rights through standard venues such as state civil and criminal courts. Working with an attorney experienced in campus adjudication processes can not only provide peace of mind but also provide the guidance you need to reach the optimum outcome.
At Nesenoff & Miltenberg, we understand Title IX issues and campus proceedings in a way few firms can match. If you have questions about pursuing an action or defending yourself against allegations anywhere in the U.S., contact our team for a confidential consultation today.