The U.S. Department of Education has released its final amendments of the regulations to Title IX of the Education Amendments of 1972 regarding how educational institutions must handle allegations of sexual discrimination and sex-based harassment. The new regulatory requirements will go into effect Aug. 1, 2024.
The new regulatory requirements will replace the 2020 amendments, which will remain in effect until Aug. 1, 2024.
Key changes between the 2020 and 2024 Title IX regulations include:
- Post-secondary institutions are not required to conduct live
determination hearings but have the option.
- At post-secondary institutions, a complaint filed by an
individual or the Title IX coordinator is no longer required to
trigger a post-secondary institution's duty to respond. A
post-secondary institution must respond promptly and effectively
when it has knowledge of conduct that reasonably may constitute sex
discrimination in its education program or activity. Further,
non-confidential employees, depending on their leadership
authority, must either report conduct that may reasonably
constitute sex discrimination to the Title IX coordinator or
provide the reporter with the Title IX coordinator's contact
information and information about filing a complaint.
- As opposed to any alleged conduct occurring outside the United States being excluded, a school must respond when a sex-based hostile environment is alleged to have occurred under its education program or activity even when some conduct occurred outside the institution's program or activity or outside of the United States.
Other provisions include:
- "Sex-based harassment" includes quid pro quo
harassment, specific sexual offenses (sexual assault, dating
violence, domestic violence, and stalking), and hostile
environment harassment (unwelcome sex-based conducted that, based
on the totality of the circumstances, is subjectively and
objectively offensive and is so severe and pervasive that it limits
or denies a person's ability to participate in or benefit from
the institution's education program or activity).
- The term "sex discrimination" includes discrimination
based on sex stereotypes, sex characteristics, pregnancy or related
conditions, sexual orientation, and gender identity.
- An institution must not separate or treat any person
differently based on sex in a manner that subjects them to more
than de minimis harm, and preventing a person from participating in
an education program or activity consistent with their gender
identity subjects that person to more than de minimis harm.
- An institution must ensure it does not treat students,
employees, or applicants differently based on sex in connection
with parental, family, or marital status.
- Schools are to ensure they provide equal access to an education
program or activity by providing reasonable modifications for
students related to pregnancy and related conditions, reasonable
break time for lactation for employees, and lactation space for
students and employees.
- Schools are obligated to prohibit retaliation (including peer
retaliation) and must respond to conduct that reasonably may
constitute retaliation using the same procedures that it uses for
other forms of sex discrimination.
- Title IX coordinators have the added responsibility of
monitoring an institution's education program or activity for
barriers to reporting conduct that may reasonably constitute sex
discrimination and take steps to address such barriers.
- Revised grievance procedures for sex discrimination complaints
to include:
- Reasonable steps to protect privacy of parties and witnesses during the grievance procedures;
- If an institution adopts procedures that apply to the resolution of only some complaints, articulate principles for how the institution will determine which procedures apply;
- Permitted consolidation of complaints in certain circumstances;
- A process for assessing credibility when credibility is in dispute and relevant;
- Use of a preponderance of the evidence standard of proof to determine whether sex discrimination occurred, unless the clear and convincing evidence standard is used in all other comparable proceedings, in which case that standard may be used;
- Grievance procedures for sex-based harassment complaints
involving a college or university student must include:
- A process for assessing credibility when credibility is in dispute and relevant, including questioning a party or witness during individual meetings or in a live hearing; and
- Written notice of delays in an investigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.