In April, the Biden Administration released its final version of updated regulations related to the implementation of Title IX. These new regulations introduce several new stipulations aimed at extending protections to LGBTQ+ identifying students and enhancing protections for pregnant or parenting students. They also revise the definition of sexual harassment and the investigation process for such cases. The new regulations will go into effect on August 1, 2024, meaning that reported incidents of sex discrimination that occur on or after August 1 will be handled under the new regulations in most states, dependent on how federal courts address the regulations.
Supporters of the Administration and the rule applaud the new regulations, while critics are working to overturn them. Recently, a federal judge in Kentucky temporarily blocked the new rule in Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia on the grounds that they are inconsistent with the underlying Title IX law. This follows a previous ruling from a federal judge in Louisiana who ruled to block the new Title IX regulations from taking effect in Idaho, Louisiana, Mississippi and Montana. There have been multiple other lawsuits by states and critics as well, and a recent resolution of disapproval was passed by the House Education and Workforce Committee. At this point, however, the regulations are still scheduled to go into effect in 40 states, so keep reading for a summary of the major implications.
New Title IX Regulations
Under the new rule, Sex-based harassment, the standard for what constitutes as sexual harassment has been revised from “severe, pervasive, and objectively offensive” conduct to “sufficiently severe or pervasive” conduct. Some warn that this more encompassing definition may result in a perceived uptick of complaints filed because the broader criteria and simpler filing process will enable more students who have experienced sexual harassment to act.
The new rule also adopts the “single-investigator model” as an option for addressing complaints that had been discontinued in 2020. In any given case, under this model one person can investigate, adjudicate and issue any sanctions against the person accused of sexual misconduct. In other models, advisers would cross-examine the complaining and responding parties and their witnesses. Critics are concerned about how this shift will impact due process, while supporters applaud a system that encourages reporting.
The Department of Education has also expanded the regulations to include more protections for students who are parents or with “pregnancy or related conditions" which includes pregnancy, childbirth, termination of pregnancy, lactation, “termination of pregnancy” which includes stillbirth, abortion and miscarriage, all related medical conditions and recovery. The Department notes that they recognize sex stereotypes about who bears responsibility for raising children are still common and can impact students, employees and applicants who become parents when pursuing educational opportunities. This does not impact how State law defines parental rights, but prohibits policies, practices and procedures that discriminate against a student based on their parental status.
Examples of this discrimination might include not allowing a student to participate in a field-work course or on-the-job training based on their condition or perceived condition; not allowing a parent into a program due to an assumption about their temporal capacity because of their parental duties; not providing a private and safe lactation space; or retaliation against students who are experiencing any of the protected conditions.
The new Title IX regulations have also been expanded to protect LGBTQ+ individuals from discriminatory practices. The Department has outlined that discrimination on these bases follows a similar structure of sex discrimination against students because they do not conform to masculine or feminine sex stereotypes. The rule defines gender identity as, “a description of an individual’s sense of their gender, which may or may not be different from their sex assigned at birth,” (this definition is consistent with court usage). Title IX now prohibits discrimination against students because of their gender identity, or perceived gender identity, and their perceived or actual sexual orientation. Any assertions about a student’s gender identity must either come from the student or from written confirmation by the student, their parent, counselor, coach or teacher.
The Department also fielded comments on student and employee participation consistent with gender identity. As noted in the discussion of the regulations, “Title IX prohibits all sex discrimination, including gender identity discrimination in federally funded education programs and activities, and [that] students experience sex-based harm that violates Title IX when a recipient bars them from accessing sex-separate facilities or activities consistent with their gender identity.” This is relevant to CTE programs when conducting activities that might be otherwise gendered. An example of this form of discrimination, provided by the Department, noted that denying a transgender student’s access to a sex-separate education program or activity consistent with his gender identity imposed serious harm on his mental health and overall well-being, thus in violation of Title IX. However, the Department of Education and Biden Administration have emphasized that this does not apply to athletics, and additional rules related to that topic are expected in the future.
The regulations noted that, in the case of a student who may identify as nonbinary, the school could coordinate with the student and their parent or guardian (as appropriate) to best determine where the student will feel safest in their access to programs or activities.
For additional resources on the new Title IX regulations, see below.
Drafting Nondiscrimination Policies
Fact Sheet
File a Complaint
