Summary
As long expected, the U.S. Department of Education issued amendments to Title IX regulations following the public comment period. The amended regulations—totaling 1,577 pages—make clear that sex discrimination under Title IX encompasses discrimination based on sexual orientation and gender identity and expands protections to include pregnancy and related conditions for both students and employees. Sex discrimination also includes sex-based harassment on these same bases. The regulations also lower thresholds mandating investigations into sexual misconduct and change evidentiary standards and required processes in those adjudications. These regulations go into effect on August 1, 2024.
The Upshot
- The regulations spell out that discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
- To clarify protections for pregnant people, the regulations add a definition for “pregnancy or related conditions.”
- The regulations clarify that an institution is required to address sex-based harassment even when some of the alleged conduct contributing to a hostile environment occurred outside of its educational programs or activities, and even if the contributing conduct occurred outside of the United States.
- The regulations expand a post-secondary institution’s obligation to conduct an investigation into allegations of discrimination by requiring a broader range of school employees to notify the Title IX coordinator of such claims, when previously such a duty was limited to instances when the allegation was reported to a more limited set of “designated employees.” It is important to note that the Title IX processes can be triggered both by students or employees raising a complaint of sex discrimination.
- In adjudicating claims of sex discrimination, schools are required to use the preponderance of the evidence standard of proof rather than clear and convincing evidence, unless the school uses the clear and convincing standard in all comparable proceedings, including other discrimination complaints.
- The regulations lower the threshold for establishing sexual harassment from “severe, pervasive, and objectively offensive” to conduct “so severe or pervasive” that it limits or denies a person’s ability to participate in or benefit from an institution’s education program or activity.
- The regulations allow a return to the “single investigator model,” which had been banned under the Trump era changes that took effect in 2020.
- The regulations eliminate the requirement that all post-secondary institutions hold live court-like hearings when adjudicating claims of sex discrimination.
- Contrary to a proposal issued in 2023, the regulations do not prohibit bans barring transgender athletes from participating on athletic teams that align with their gender identity.
The Bottom Line
The enacted regulations are a substantial departure from the most recent framework implemented by the Trump administration in 2020. Institutions should review their current policies and staff training programs to ensure alignment with the revised regulations, which go into effect on August 1, 2024. The 2020 regulations remain operative and binding until the new regulations go into effect, and will continue to apply to events alleged to have occurred prior to August 1, 2024, even if reported to a school after that date.
Attorneys in Ballard Spahr’s Education Industry Group, Labor and Employment Group, and White Collar Defense/Internal Investigations Group advise schools and universities on a wide range of education law issues and conduct related investigations, including under Title IX.
The Biden administration’s new regulations are a significant departure from the prior, Trump-era rules issued in 2020. The Department’s stated objective is to return protections for those alleging sexual discrimination and harassment, including for LGBTQI+ students, and to “issue a rule that can stand the test of time.”
Expanded Scope
The new rule makes clear that “sex discrimination” under Title IX includes discrimination based on sex stereotypes, sex characteristics, sexual orientation, and gender identity. It also expands protections to cover students and employees who are pregnant or parenting.
In affirming that Title IX protects individuals from discrimination based on their sexual orientation and gender identity,1 the new rule aligns Title IX with recent federal court decisions. In Bostock v. Clayton County, the Supreme Court held that sex discrimination encompasses discrimination based on sexual orientation and gender identity. 140 S. Ct. 1731, 1737 (2020). The Department’s reference to discrimination “on the basis of sex” is not restrictive, nor is its list of specific categories (i.e., sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity) exhaustive. Instead, Title IX’s broad prohibition on discrimination “on the basis of sex” encompasses, as a minimum, discrimination against an individual because “they are or are perceived to be male, female, or nonbinary; transgender or cisgender; intersex; currently or previously pregnant; lesbian, gay, bisexual, queer, heterosexual or asexual; or gender-conforming or gender-nonconforming.”
The regulations also clarify that Title IX’s protections from discrimination based on sex stereotypes include protections for people experiencing pregnancy and related conditions, even beyond pregnancy and recovering from childbirth. Under the new rule, Title IX protects people from discrimination for conditions related to or caused by pregnancy, childbirth, termination of pregnancy, loss of pregnancy, and lactation. While the new rules do not specifically define “termination of pregnancy,” the Department has long recognized that such conditions include abortion, and the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has not changed its interpretation.
The Department did not issue regulations addressing the placement of students who are transgender in sex-segregated athletic teams, as was anticipated. That proposed rulemaking was published in April 2023 and would allow schools to deny transgender students access to sex-segregated sports teams that align with their gender identity only where doing so was substantially related to an educational objective, considering students’ grade, level of competition, and the characteristics of the sport. According to a Department press release, the Department’s proposed rulemaking process as to this topic remains ongoing.
The new regulations do clarify that Title IX’s prohibition of all sex discrimination extends to off-campus conduct at locations operated or overseen by a recipient institution, as well as off-campus buildings owned or controlled by student organizations officially recognized by the school, and including conduct that is otherwise subject to the school’s disciplinary authority. Furthermore, the regulations now provide that schools have an obligation to address hostile environments occurring within its programs or activities, even when the sex-based harassment contributing to the hostile environment occurred outside the program or activity, including that occurring outside the United States.
Title IX Standards
In adjudicating claims of sex discrimination under the new rule, schools are required to use the preponderance of the evidence standard of proof when determining whether sex discrimination occurred. The only exception is when the school also uses the clear and convincing evidence standard in all other comparable proceedings, such as allegations of race-based discrimination or code of conduct violations.2 This is a sharp deviation from the 2020 rules, which permitted schools to elect to use either the preponderance of the evidence standard or the clear and convincing evidence standard.
In addition, the new rule lowers the standard for establishing hostile environment harassment and is anticipated to result in an increase in the number of complaints. Specifically, under the 2020 regulations, in order to establish hostile environment harassment under Title IX, a school had to find that the unwelcome conduct was so “severe, pervasive, and objectively offensive” that it effectively denied a person equal access to the school’s education program or activity. However, under the new rule, the standard is lowered to include unwelcome conduct that 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 a school’s education program or activity.
Investigations and Adjudications
Under the 2020 Title IX regulations, a higher education institution was only compelled to initiate an investigation of a formal complaint of sexual harassment or abuse when the alleged victim reported it to a “designated employee” in writing. The 2020 rules limited “designated employees” to the Title IX Coordinator or other employees with authority to implement corrective measures. The regulations now allow complaints to be either oral or written, and impose requirements upon a wide array of post-secondary school employees to notify the Title IX Coordinator when they have information that reasonably may constitute sex discrimination.
In addition, in the context of harassment involving a post-secondary student, the new regulations remove the 2020 requirement that a live hearing with advisor-conducted cross-examination be held. Rather, a post-secondary institution may forego a live hearing so long as it: (1) provides a process that enables the ultimate decisionmaker to question parties and witnesses to adequately assess credibility when such credibility is in dispute; (2) allows the parties to propose relevant and not otherwise impermissible questions for the investigator or decisionmaker to ask the other party or witnesses; and (3) provides each party with an audio or audiovisual recording or transcript with reasonable opportunity to propose follow-up questions for the other party or witnesses.
Conclusion
While many changes are significant, the regulations also maintain some of the major provisions from current regulations, such as an institution’s duty to respond promptly and effectively, to operate in a manner that is fair and transparent, and to ensure reliable processes that include trained and unbiased decisionmakers. Nonetheless, given the broad-reaching changes that will require new policies, procedures, and training for relevant personnel, schools would be well served to take steps to move toward compliance without delay.
1. 34 CFR 106.10.
2. 34 CFR 106.45(h)(1).
Related Insights
Subscribe to Ballard Spahr Mailing Lists
Get the latest significant legal alerts, news, webinars, and insights that affect your industry.
Subscribe Copyright © 2024 by Ballard Spahr LLP.
www.ballardspahr.com
(No claim to original U.S. government material.)
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.
This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.