While the U.S. Department of Education’s long-awaited revisions to the Title IX regulations were finally released on Friday, April 29, 2024, they do not take effect until August 1, 2024, and are NOT retroactive. For the next few months, education entities and professionals will be bombarded with information on what these new regulations mean and how to implement them. However, there are three aspects of the new regulations that deserve immediate notice, as they are significant departures from the 2020 regulations.
1. Liability standard. The 2024 regulations require districts “with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity” to “respond promptly and effectively.” 34 C.F.R. 106.44(a)(1). Under the 2020 regulations, districts with actual knowledge were required to respond “promptly in a manner that is not deliberately indifferent.” Since “deliberately indifferent” means districts could not behave in a manner that was clearly unreasonable in light of the known circumstances; “effectively” is a higher standard. “Effectively” is undefined and will likely be the subject of litigation.
2. On the basis of sex. The 2024 regulations expand the scope of Title IX’s prohibition against excluding individuals from participation in, the benefits of, or discrimination “on the basis of sex” in two important ways.
First, the regulations specify that the scope of “on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” Id. at § 106.10. This is consistent with the current administration’s interpretation of the Bostock Supreme Court case from 2020, which held that “on the basis of sex” includes discrimination based on sexual orientation and gender identity. It is unclear whether the conservative Fifth Circuit will agree that Bostock covers sex stereotypes or sex characteristics.
Second, otherwise permissible separate treatment of the sexes under Title IX, such as in bathrooms, locker rooms, and showers, may be discriminatory if it is carried out in a way that “would cause more than de minimis harm.” Id. at § 106.31(a)(2). The regulations specifically state that “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 subjects a person to more than de minimis harm on the basis of sex.” Id.
3. Hostile environment harassment. The 2024 regulations continue to identify three types of sex-based harassment: (1) quid pro quo, (2) hostile environment, and (3) specific criminal offenses. However, the 2024 regulations expand the behavior that qualifies as creating a hostile environment. Id. at § 106.2. The new regulations specify that the conduct must be considered under a “totality of the circumstances” test. Further, rather than the old “reasonable person” determination that the conduct is severe, pervasive, and objectively offensive, the new regulations break this into pieces. Under the 2024 regulations, the conduct must be subjectively and objectively offensive. Further, the conduct must be severe or pervasive. Finally, the conduct may not limit or deny participation, as opposed to the old standard that the conduct may not “effectively deny” access to the district’s education program or activity.
The new 2024 regulations also address how districts are to proceed when a complainant or respondent has an Individualized Education Program (IEP) or a Section 504 Plan and regarding students who are pregnant. Bracket & Ellis will address these topics, along with information on the amended investigation and grievance procedures, in coming emails.
Brackett & Ellis, along with other law firms and professional organizations, will be providing more information and training in the coming weeks and months, but we strongly encourage you to read the new regulations and supporting documents. You can find the Department of Education’s press release regarding the new regulations at U.S. Department of Education Releases Final Title IX Regulations, Providing Vital Protections Against Sex Discrimination | U.S. Department of Education. The second to last paragraph of the release contains a hyperlink to the unofficial version of the new regulations and several hyperlinks to supporting documentation. In the unofficial version, the final regulations start after the commentary on page 1521 of the pdf document.
This summary is not, and is not intended to be, an exhaustive explanation or summary of the new Title IX regulations and does not constitute legal advice. Please contact the attorneys at Brackett & Ellis for additional information and assistance regarding Title IX. We can be reached at (817) 338-1700.
