New Title IX Regulations Cast a Wider Net

Note: For updated information on how these Title IX regulations impact K-12 school divisions read our Title IX alert here. 

On April 19, 2024 the long-awaited Biden-era Title IX Regulations dropped. A theme in the U.S. Department of Education’s 2024 Title IX Final Rule: more protection against discrimination based on sex in federally funded educational programs. In other words, a wider net.

In summary, the new Title IX regulations:

• Explicitly include “hostile environment harassment” as one of the categories of conduct prohibited by Title IX. The standard for establishing a hostile environment is “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 access to educational programs and activities”
• Require K-12 Title IX Coordinators to consult with one or more members of the student’s Individualized Education Program (IEP) team, if any, and one or more members of the student’s Section 504 team, if any, to help ensure that the recipient complies with the requirements of the IDEA and Section 504 throughout the recipient’s implementation of its grievance procedures
• Obligate recipients to address a sex-based hostile environment under its education program or activity, even when some conduct alleged to be contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States
• Emphasize additional protections — including notice and accomodations — for pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions
• Remove the requirement of live hearings with cross-examination for institutions of higher education
• Prohibit discrimination against LGBTQI+ individuals, explicitly conforming the 2024 Title IX Final Rule with the definition of “sex” from the U.S. Supreme Court’s ruling in Bostock v. Clayton County
• Clarify that, except as permitted by certain provisions of Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity

The effective date of these regulations is August 1, 2024. The language of the Final Rule is available at Title IX NFR.

Given the changes, now is an optimum time for educational institutions to audit and amend all Title IX based policies and procedures.