New Title IX Rules for Schools Become Effective August 1, 2024
Jun 25, 2024Significant Changes Will Require an Overhaul of Policies and Procedures
All primary and secondary schools and institutions of higher education receiving federal funds should now be preparing to comply with the new Title IX rules published in April by the United States Department of Education (DOE).
Title IX, signed into law by President Richard Nixon as part of Education Amendments of 1972, is a civil rights law banning sex discrimination against students, employees, and others at public schools, colleges, and any educational program or institution receiving federal funding. Title IX is often called the most important law for women and girls passed by Congress since women won the right to vote in 1920.
These new Title IX rules become effective on August 1, 2024, and will change how schools are expected to handle Title IX matters going forward. Compliance will also require a comprehensive overhaul of a school’s Title IX policies.
More Complaints Ahead
Below is a summary of the more significant changes to Title IX protections. Because these changes have broadened the scope of protections and expanded the government’s understanding of protected groups, those schools and programs impacted by Title IX should anticipate increased complaints in the months ahead.
Harassment: The new rule expands the definition of sex-based harassment to encompass harassment based on sex characteristics, sex stereotypes, sexual orientation, gender identity, and “pregnancy and related conditions.” The new rule also expands the definition of hostile environment harassment to include conduct that is severe or pervasive rather than requiring the conduct to be severe and pervasive. The new regulations also provide guidance for determining whether a hostile environment exists, including factors that a school must consider as part of its hostile environment analysis.
Off-Campus Conduct: The old rule was vague about where the protections provided by Title IX end. The new regulations clarify that schools are responsible for addressing all sex discrimination and sexual harassment — including sex-based hostile environment charges — even when they occur off campus or outside the United States.
Proof: The previous regulations mandated using a higher standard of evidence — “clear and convincing” evidence — when adjudicating a sexual harassment matter. The new rules permit institutions to choose between using the “preponderance of the evidence” standard (lower standard) and the “clear and convincing evidence“ standard (higher standard).
Process: The previous rule required schools to hold live hearings, with live cross-examinations. The new rules retain the requirement for live hearings, but schools will no longer be required to have in-person cross-examinations. The new rules also have enhanced protections for complainants during cross-examination; they may request “alternative arrangements” — using separate rooms or screens — to avoid direct contact with the accused/respondent.
Inclusion: The DOE expanded Title IX to formally include “gender identity” in the definition of sex, clarifying that individuals identifying as LGBTQ+ are protected under Title IX against gender identity or sexual orientation discrimination. Notably, the new rules avoid the controversial question of whether schools can ban transgender athletes from competing on teams associated with their gender identity.
The DOE said they would propose a separate rule on this issue but offered no timeline. The DOE has also released a fact sheet, a summary of the final regulation’s significant provisions, and a resource guide for drafting Title IX nondiscrimination policies, notices, and grievance procedures.
Be Prepared
If you have any questions about updating your Title IX policies and procedures—or have received a complaint claiming civil rights discrimination—don’t hesitate to contact Orr & Reno for assistance.
