On Friday, April 19, 2024, the U.S. Department of Education released its final rule amending the implementing regulations for Title IX of the Education Amendments of 1972 (Title IX). The new regulations mandate an overhaul of the policies, procedures, and standards that public schools implement with respect to sex-based discrimination, including sex-based harassment.
All public school divisions must be in compliance with the final rule by August 1, 2024, just prior to the start of the 2024-25 academic year.
In summary, the new regulations:
- Expand the scope of certain regulations to cover all claims of sex-based discrimination, not just claims of sexual harassment.
- Require schools to implement certain grievance procedures for oral and written “complaints of sex discrimination,” which includes sexual harassment.
- Broaden the definitions of “discrimination on the basis of sex” and “sex-based harassment” to explicitly include discrimination/harassment “on the basis of sex, stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
- Add a new standard for evaluating discrimination claims other than sex-based harassment. Schools may not treat individuals differently or separate individuals on the basis of sex “in a way that would cause more than de minimus 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.”
- Identify “hostile environment harassment” as one of three categories of “sex-based harassment” (in addition to quid pro quo harassment and specific offenses such as sexual assault). Hostile environment harassment is defined as “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 or denies a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment).”
- Provide schools with more flexibility in the choice of grievance procedures that they use to respond to complaints of sex-based discrimination.
- Include specific requirements when a student with a disability is a party to a complaint.
- Mandate annual training for ALL school employees on the school’s obligation to address sex discrimination, the scope of conduct that constitutes sex discrimination, and applicable reporting requirements, as well as broader annual training for the school employees with certain designated responsibilities under Title IX.
- Contain numerous other requirements that will be covered in regional trainings provided by Sands Anderson starting in early June 2024.
