Federal court injunctions, upheld by two appellate courts, mean the new regulations will take effect only in a patchwork of states. But with an effective date looming, all universities must be prepared to implement a series of key changes.

Last week, two federal appellate courts issued rulings that will significantly impact the enforcement of the new Title IX regulations set to take effect on August 1, 2024. The courts rejected the U.S. Department of Education’s attempts to lift lower court injunctions. As a result of these decisions by the Cincinnati-based 6th Circuit and the New Orleans-based 5th Circuit, these regulations will remain blocked in at least 10 states, creating a patchwork of enforcement across the country unless the U.S. Supreme Court intervenes.

Despite these court challenges, institutions should be ready to comply with the new regulations where they will be enforced. Policies and procedures need to be updated by August 1, 2024.

5th Circuit Ruling
On July 17, a panel of the 5th Circuit ruled 2-1 in Louisiana v. U.S. Department of Education, a case involving Louisiana, Idaho, Mississippi, and Montana, along with several Louisiana school districts. The court rejected the Education Department’s request to limit the injunction to specific provisions of the new regulations, noting that parsing the 423-page rule without detailed arguments would be impractical. The panel concluded that delaying the enforcement of the new regulations does not cause irreparable harm to the Department of Education, given the lengthy process taken to promulgate the rule.

6th Circuit Ruling
Also on July 17, the 6th Circuit ruled 2-1 in Tennessee v. Cardona. This case was brought by Tennessee, Kentucky, Ohio, Virginia, and West Virginia. The majority opinion, written by Judge Jeffrey S. Sutton, suggested that the district court likely concluded correctly that the new rule’s definition of sex discrimination exceeds the department’s authority. Sutton found that the Education Department’s reliance on the Supreme Court’s 2020 decision in Bostock v. Clayton County was misplaced, as the definition of sex discrimination in the workplace under Title VII does not directly translate to Title IX and the educational setting.

Implications for Enforcement
These decisions mean that, unless we see intervention by the U.S. Supreme Court, the new Title IX regulations will take effect only in certain parts of the country. The challengers argue that the support for transgender students under the new rule is inconsistent with the original text of Title IX, which prohibits sex discrimination in federally funded schools. As such, universities in the affected states will need to navigate a complex legal landscape while preparing for compliance with the new regulations.

Major Changes and Action Items

While there are some significant changes in the new Title IX Regulations, your existing policies and procedures can most likely be modified with a few key changes to bring your Institutions into compliance.

Broadly, the areas that must be addressed are:

• Choosing an Investigation Model: Decide between the “Single Investigator” model or adapting your existing investigation and hearing policies to meet new requirements for live hearings.
• Training Employees: Ensure all relevant staff are trained, especially those required to report Title IX issues to the Coordinator. Everyone should know their role and responsibilities.
• Complying With Expanded Anti-Discrimination Definition: Revise your policies to align with expanded anti-discrimination regulations, covering gender identity and pregnancy-related conditions

Outline of Key Differences in New Regulations

Expanded Definitions:

• Sex-based harassment now includes unwelcome conduct that’s severe or pervasive enough to limit someone's ability to participate in educational programs.
• Sex discrimination now covers discrimination based on sex stereotypes, sex characteristics, pregnancy, sexual orientation, and sexual identity.

Global Reach: While Title IX generally applies within the United States, you must address any conduct abroad if it contributes to a hostile environment.

Broader Requirement to Conduct Title IX Investigation: You must act on any known conduct that could reasonably be considered sex discrimination within your programs or activities.

Employee Training: Your staff fall into three categories:

• Confidential Employees: Not required to report but must provide information on filing complaints.
• Non-Confidential Employees With Authority: Must report to the Title IX Coordinator.
• Other Non-Confidential Employees: Must report or provide contact info for the Title IX Coordinator.

Investigation Requirements: Even without a formal complaint, you must investigate if the conduct threatens health or safety or prevents equal access based on sex.

Grievance Procedures: You have more flexibility to design grievance processes that suit your institution's needs. Key points include:

• Prompt timelines for proceedings
• Privacy protection for all parties
• Differentiated procedures for various complaint types

Single Investigator Model: Permitted again, but with strict requirements for assessing credibility through questioning.

Expert Witnesses: Allowed, provided all parties have equal access.

Exclusion of Certain Evidence:

• Privileged information
• Health records without consent
• Sexual history, unless directly relevant

Support for Pregnant Individuals: Reasonable modifications and private lactation spaces must be provided.

Non-Discrimination Based on Sex: Policies preventing participation consistent with gender identity are generally considered harmful and non-compliant with Title IX.

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