Changes to the Title IX Rules: A Highlight Reel

The new Title IX regulations are here and go into effect on August 1, 2024. The rules expand the scope of coverage, add flexibility to the grievance process, and make changes to other required steps schools must take to comply with Title IX. Below is our highlight reel. For a more in depth look at the new rules, check out our recent webinar: Sneak Preview of the New Title IX Rules and sign up for our upcoming webinars: Lights, Camera, Action Plan! for higher education institutions on May 2 and for K-12 schools on May 7 

 

Expanded Scope

1. Sex Discrimination 

Under the new rules, schools will be required to address all sex discrimination, not just sexual harassment, through the Title IX grievance process. The 2024 regulations apply to all sex discrimination, which includes different treatment, disparate impact, and retaliation, in addition to harassment. This means that if there is an allegation that a teacher grades male students lower than female students or that the softball facilities are inferior to the baseball facilities, the complaint would be addressed using the Title IX grievance procedures.  

2. Sex-Based 

The new rules also explicitly state that sex discrimination and harassment include discrimination and harassment on the basis of sex stereotypes, sex characteristics, pregnancy and related conditions, sexual orientation, and gender identity. This was already the position of the Department of Education, but these rules are the first time it has been spelled out in the regulations.  

The regulations explain that there are limited circumstances where Title IX permits separation or different treatment on the basis of sex, but such different treatment or separation is generally permissible only if it does not subject a person to more than de minimis harm. The regulations go on to explain that preventing a person from participating in an education program or activity consistent with their gender identity causes more than de minimis harm. The Department states in the preamble to the rules that this means Title IX requires individuals to be permitted to use bathrooms and locker rooms that align with their gender identity. We have already seen some state officials call for schools not to implement the new rules and litigation seeking to enjoin the rules and this aspect of the rules specifically.  

The rules do not address participation on sex-separate athletic teams and gender identity, which will be covered by a separate rule. Additionally, sex-separate housing is not covered by the requirement to permit participation aligned with gender identity.    

3. Protections for pregnant and parenting students and employees 

The new rules codify protections for pregnant and parenting students, including pregnancy-related conditions. Pregnant students are entitled to voluntary reasonable accommodations or modifications following an interactive process, similar to the disability accommodation process. The regulations also include provisions related to leave and lactation space as well as training and reporting for employees. Beyond Title IX, don’t forget to review the Pump Act, the Pregnant Workers Fairness Act, and state law for overlapping and additional requirements.  

4. Hostile environment  

The new regulations revise the definition of hostile environment sex-based harassment in a way that will expand the conduct that is covered. The 2024 definition includes unwelcome sex-based conduct that “based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the [school’s] education program or activity.” The department also provided factors to consider to determine if the standard is met. The change from severe and pervasive to severe or pervasive will mean that more complaints will need to go through the Title IX grievance process.  

5. Off-campus conduct 

The new regulations continue to cover the school’s response to conduct that occurs within the traditional operations of the school, including on-line programs and extracurricular activities. While the 2020 rules focused on whether the school had substantial control over both the harasser and the context in which the harassment occurred, the 2024 rules instead focus on whether the conduct is subject to the school’s disciplinary authority. So if the school would impose discipline for similar, non-sex based, off-campus behavior, then the conduct is within the program or activity and must be addressed according to the new rules. Like under the 2020 rules, when conduct outside the program or activity contributes to a hostile environment in the education program or activity, the school must address the hostile environment.  

 

Revisions to the Grievance Process

6. Filing complaints  

The options for initiating the grievance process are expanded in the new rules. First, complaints no longer have to be in writing and signed; the new rules remove any reference to a “formal complaint.” Instead a complaint can be oral or written if it can be objectively understood as a request for the school to investigate and make a determination about alleged sex discrimination.  

Additionally, the list of people who can file a complaint is expanded. In addition to the complainant, anyone who was participating or attempting to participate in the program or activity when the discrimination occurred can make a non-harassment complaint, even if they were not directly impacted by the alleged sex discrimination.  

Further, the definition of complainant has expanded to include anyone who is alleged to have been subjected to conduct that could constitute sex discrimination while participating or attempting to participate in the education program or activity. There is no longer a requirement that the complainant be participating or attempting to participate in the education program or activity when the complaint is made. This change means that complainants could include, for example, a prospective student, visiting student-athlete, former student or employee, or guest speaker. The new rule also provides factors for the Title IX Coordinator to consider when determining whether to make a complaint when the complainant does not.  

7. Simplified grievance process with more flexibility  

While many of the changes described above will increase the number of complaints that go through the grievance process, that process is simplified, particularly for K-12 schools, and schools have more flexibility. Here are some examples: 

  • The Title IX Coordinator, investigator, and decisionmaker can be the same person. 
  • An accurate description or summary of the relevant evidence must be shared with the parties (with an option to request access to the relevant evidence). But sharing “directly related evidence” is no longer a step. The parties must have an opportunity to respond to the relevant evidence, but the timeframe is not specified.  
  • Dismissals are all permissive.  
  • Schools have options for determining the credibility of parties and witnesses. Written cross-examination is no longer required for elementary and secondary schools. For most types of investigations, meetings where the decisionmaker questions the party or witness will suffice. In higher education, for allegations of sex-based harassment involving a student as a party, there is an option for a live hearing or asynchronous questioning of the parties and witnesses by the decisionmaker. For live hearings, questions can be posed by party advisors or the parties can propose questions to be asked by the decisionmaker. For asynchronous questioning, the parties must have an opportunity to propose questions to be asked by the decisionmaker, review a recording or transcript of the interview, and propose follow up questions to be asked by the decisionmaker.  
  • For all investigations other than higher education sex-based harassment involving student parties, the determination is streamlined, requiring only the conclusion of whether sex discrimination occurred and the rationale. Additionally, the appeal process for these complaints needs to simply follow the same process used in comparable proceedings, if any.  
  • The determination and appeal processes for higher education sex-based harassment complaints involving student parties are similar to what was required by the 2020 regulations. 

Remember, with great flexibility comes great responsibility. Schools have decisions to make and spell out in their grievance procedures to effectuate the new rules. 

8. Supportive measures  

The concept of supportive measures continues from the prior rules with a few changes. The examples provided in the new regulations clarify that no contact orders can be unilateral rather than mutual and that changes in class, work, housing, or extracurricular activities can occur regardless of whether there is a comparable alternative. The new rules also add a process where a party can challenge a decision to provide, deny, modify, or terminate a supportive measure.   

 

Administrative Changes

9. Responsibility to operate free from sex discrimination 

Beyond using the grievance procedures to address complaints of sex discrimination, the new rules emphasize the obligation to operate the education program or activity free from sex discrimination. When the school has knowledge of conduct that reasonably may constitute sex discrimination under Title IX, it must take action to promptly and effectively end any sex discrimination, prevent its recurrence, and remedy its effects. This is the case even when no complaint is initiated, informal resolution is used, or a complaint is dismissed. The Title IX Coordinator is also required to monitor for barriers to reporting and address identified barriers. In addition to coordinating supportive measures, disciplinary sanctions, and remedies, the Title IX Coordinator must take other appropriate prompt and effective steps to ensure sex discrimination does not continue or recur.  

10. Training  

In line with the focus on eliminating sex discrimination in the education program or activity, the 2024 rules include new training requirements. The new rules require specified training for the Title IX team (coordinator, deputies, designees, investigators, decisionmakers, appellate decisionmakers, informal resolution facilitators, confidential employees, and those with authority to modify or terminate supportive measures) promptly upon hiring or change of position that alters their Title IX duties and annually thereafter. Additionally, all employees must receive annual training on the school’s obligation to address sex discrimination, the scope of conduct covered by Title IX, and the applicable reporting requirements. This new requirement includes training regarding the protections for pregnancy and related conditions. 

 

BONUS: Informal Resolution 

Informal resolution continues to be an alternative to the formal grievance process. The new rules allow for the use of informal resolution without filing a complaint.  

 

That’s our highlight reel, but there are many other changes, like requirements for parties with disabilities, privacy protections, parental rights, confidential employees, and the notice of nondiscrimination. If you have questions, please reach out to titleix@thompsonhorton.com. We also have new training options and Title IX Guidebooks to support your team, as well as upcoming K-12 and higher education webinars.