Extensive amendments to Title IX rules have recently been released by the U.S. Department of Education, and go into effect on August 1, 2024.
The new regulations explicitly recognize that sex discrimination under Title IX includes discrimination based on gender identity and sexual orientation. Additionally, they introduce revised grievance procedures for the "prompt and equitable" resolution of sexual harassment and sex discrimination complaints.
“These final regulations clarify Title IX’s requirement that schools promptly and effectively address all forms of sex discrimination,” said Catherine E. Lhamon, the DOE’s assistant secretary for civil rights, when announcing the changes.
The "unofficial" final version of the rules, including the authors’ comments, spans 1,577 pages, while the official version published in the Federal Register consists of 423 pages of dense, triple-columned print. This extensive rulemaking presents a significant challenge for school administrators and their attorneys to process and implement before the new standards take effect on August 1.
One of the biggest changes is that a school does not necessarily have to provide a respondent with substantial details about the alleged conduct before a meeting. If someone goes in for an interview, it’s very possible they have no real understanding of the alleged conduct beyond a brief description.
Significant Changes to the Regulations
The new rules overturn the 2020 regulations implemented by former Education Secretary Betsy DeVos, which were designed to bolster protections for students accused of sexual misconduct.
Title IX, enacted in 1972, mandates that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The recent amendments to Title 34, Part 106 of the Code of Federal Regulations bring about notable changes. 34 C.F.R. §106.10 explicitly extends Title IX protections to LGBTQ+ students, broadening the definition of sex discrimination to encompass “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Section 106.45 of the updated regulations delineates standards for grievance procedures, emphasizing the necessity for “prompt and equitable” resolution of sex discrimination complaints. Unlike the previous administration's guidelines, the new rule permits the decision-maker to also fulfill the roles of Title IX coordinator and investigator.
Furthermore, the rule mandates that schools establish a process allowing the decision-maker to thoroughly question parties and witnesses to evaluate credibility, particularly when credibility is contested and relevant to assessing allegations of sex discrimination.
Section 106.46 provides detailed grievance procedures for handling complaints of sex-based harassment involving students at post-secondary institutions. Subsection (g) offers schools the option of conducting live hearings. Should a post-secondary institution opt for a live hearing, parties may be physically present together or, at the institution’s discretion, located separately but connected via technology allowing simultaneous viewing and hearing.
Alternatively, the rule presents an avenue where each party can suggest questions for the decision-maker to pose to any party or witness, offering an alternative to a live hearing.
This marks a significant shift, affording schools the flexibility to determine whether to retain current procedures, including cross-examination. The absence of direct questioning during live hearings can lead to a lack of capturing precise reactions. Additionally, from a logistical standpoint, conducting hearings in real-time presents practical advantages.
Legal Challenges to Title IX Changes
The release of the new rules has prompted legal challenges from attorneys general in conservative-leaning states and advocacy groups aligned with conservative interests.
Among the initial legal challenges is Alabama v. Cardona, filed on April 29 in the U.S. District Court for the Northern District of Alabama. This lawsuit, spearheaded by Alabama, Florida, Georgia, and South Carolina, alongside three advocacy groups, asserts that the Biden administration's revisions to the Trump-era Title IX rule violate the Administrative Procedure Act. Additionally, the lawsuit contends that the redefinition of sex discrimination to encompass gender identity and sexual orientation is illegal.
“The challenged rule redefines ‘sex’ to include ‘gender identity’ and ‘sexual orientation,’ declares unlawful longstanding policies requiring individuals to use bathrooms matching their biological sex, and upends the foundation of women’s sports. All illegal,” the complaint asserts.
Simultaneously, Texas filed a lawsuit on the same day to halt the implementation of the rule. Texas argues that the Department of Education's actions seek to enforce significant social changes within schools by interpreting Title IX to proscribe discrimination based on sexual orientation and gender identity. The state contends that this final rule obliges states and other regulated entities to disregard biological sex or face enforcement actions and the potential loss of federal education funding.
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As a Title IX adviser of both students and faculty, we stay on top of the latest changes in the regulations so that we can best advocate for our clients and ensure that they receive a fair and equitable hearing.
If you or someone you know has experienced or been accused of gender discrimination, harassment based on sex, or sexual misconduct in school whether you're a student or faculty member, reach out to me and my team by filling out our contact form, calling (978) 744-1220 or texting me at (978) 643-0552 to discuss your situation confidentially and explore your options for seeking justice and support.