The U.S. Department of Education has released long-awaited amendments to the Title IX regulations that will take effect Aug. 1, 2024.

The amended regulations, released April 19, significantly broaden the protections of Title IX by redefining sexual harassment, expanding legal protections for LGBTQI+ and pregnant students, and significantly modifying the grievance process for complaints.

In its press release announcing the changes, the Biden Administration said the amendments — which followed extensive deliberations and over 240,000 public comments on the July 2022 notice of proposed rulemaking — provide “appropriate discretion and flexibility to account for variations in school size, student populations and administrative structures.”

School administrators should review the amendments and promptly train school employees to ensure compliance in preparation for the 2024-2025 school year. Here are several noteworthy changes that affect K-12 Public Schools.

Sex-Based Harassment

The regulations define “sex-based harassment” to include quid pro quo harassment, hostile environment harassment, and specific sexual offenses like sexual assault, dating violence, domestic violence and stalking. They also broaden the scope of discrimination on the basis of sex to include a school’s obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. This significantly expands protections for LGBTQI+ students and for students who are parents or going through pregnancy or childbirth.

Hostile Environment Harassment

The regulations change the standard for proving hostile environment harassment. In contrast to the 2020 regulations, this amendment now requires conduct that is 1) Unwelcome; 2) Sex-based; 3) Subjectively and objectively offensive; 4) Severe or pervasive; and 5) Limits or denies a person’s ability to participate in — or benefit from — the education program or activity. This change widely broadens the scope of what may be considered hostile environment harassment.

Single Investigator Model for Grievances

During the grievance process, schools will have the discretion to choose to utilize the single investigator model in many instances, where the decisionmaker may be the same person as the Title IX Coordinator or investigator. This was previously prohibited. The change gives schools greater flexibility in conducting grievance procedures. Schools that choose to use the single investigator model will need to expand grievance procedures to cover scenarios in which that model is prohibited, such as situations where a conflict of interest or bias may exist.

Gender Identity

Although these regulations do not include new rules addressing participation on athletic teams, the amendments clarify that a school entity must not separate or treat people differently based on sex in a manner that causes more than de minimis harm. This includes adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity, except in the limited areas permitted by the statute.

For example, this mandate does not generally apply to sex-separate athletic teams, admission to historically single-sex schools, or residential accommodations that have historically been permitted under the law.

However, under the new regulations, school entities may not adopt sex-separate policies or practices if there is no statutory exception where such action causes more than a de minimis harm. For example, there is no statutory exception for areas such as sex-separate restrooms, locker rooms and single-sex classes, like sex education. As such, the new regulations expressly limit a school entity's ability to adopt sex-separate policies in these areas. This provision will be the subject of much debate by school communities and will almost certainly lead to litigation.

The much-debated issue of participation in sports will be addressed in a future set of regulations that are likely to be released in the coming months. Be on the lookout for more on this subject.

DOE Title IX Resources

The Department of Education has a set of resources to help with compliance efforts:

• Fact Sheet: U.S. Department of Education’s 2024 Title IX Final Rule Overview
• Summary Chart: Brief Overview of Key Provisions of the Department of Education’s 2024 Title IX Final Rule
• Resource Guide for drafting policies and complying with the 2024 amendments.

Access the full, unofficial version of the final regulations here. With an ambitious compliance deadline of August 1, 2024, schools should take this opportunity to review and plan for the necessary policy changes, training and professional development on the changes before the start of the 2024-2025 school year.

Our education law team anticipates releasing a schedule of training opportunities and an introductory webinar in the coming weeks.

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